“I send my soul through time and space/ To greet you. You will understand…”: On Sabarimala and the Civil Rights Cases

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article 17, chandrachud, transformative constitution, untouchability

From 1861 to 1865, a long and bitter civil war was fought in the United States of America. One of the major causes of the war was a dispute over the institution of slavery. After the pro-slavery Southern States were defeated, the institution was abolished throughout the U.S., Black people were formally emancipated, and three important amendments to the American Constitution were passed. The first of these, the thirteenth amendment, stated that “neither slavery nor involuntary servitude, except as a punishment for crime … shall exist within the United States.” The federal legislature (i.e., “Congress”) was given the power to enforce the article through “appropriate legislation.” The fourteenth amendment granted to all the “equal protection of laws” (among other things), and the fifteenth amendment prohibited the denial of the right to vote on account of race.

The Civil Rights Act of 1875 

Through the late 1860s and 1870s – a time known as the “Reconstruction Era” – the Federal legislature passed laws to implement the promise of these constitutional amendments, and to initiate positive action aimed at eradicating the continuing effects of slavery. One of these laws was the Civil Rights Act of 1875. Titled “An act to protect all citizens in their civil and legal rights“, the law stipulated that:

… all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.

And:

… any person who shall violate the foregoing section by denying to any citizen … the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby … and shall also …upon conviction shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year.

The Civil Rights Act of 1875 created what we now call “horizontal rights”: that is, rights enforceable against private parties. The law proceeded on the understanding that racism was more than just a function of State action, and was also deeply embedded within the social fabric. The subordination of black people, therefore, was not merely attributable to their formal status as slaves (now abolished). It was equally due to institutionally established conduct that systematically excluded them from mainstream economic and social life. And the only way this could be remedied was by putting constraints upon seemingly “private” expressions of racism, when they involved access to “public” spaces such as inns, modes of transport, places of entertainment, etc. We are familiar with a similar provision in the Indian Constitution: Article 15(2).

The Civil Rights Cases: The Judgment of the Majority 

The Civil Rights Act was challenged before the American Supreme Court. It was argued that the Federal Congress had no power to regulate the relationships between private individuals. The Fourteenth Amendment only protected individuals from abusive State power. In the absence of a State law or State action, therefore, the Fourteenth Amendment did not authorise Congress to pass a law such as the Civil Rights Act, which only dealt with private conduct. On the other hand, the Government argued that the Fourteenth Amendment was wide in scope, and permitted Congress to enforce its provisions through appropriate legislation. The Government also argued that the denial of civil rights was an inseparable element of slavery and involuntary servitude; consequently, the law was justified under the Thirteenth Amendment as well.

By an 8 – 1 Majority, the Supreme Court struck down the Civil Rights Act as unconstitutional. The Court held that the federal Congress had no authority to regulate private conduct or impose horizontal obligations (as that was the domain of the states, under the federal scheme), and that the law was not saved either by the Thirteenth or the Fourteenth Amendment. On the Thirteenth Amendment, the Majority opinion – authored by Justice Bradley – had this to say:

The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master’s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery constituting its substance and visible form, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property as is enjoyed by white citizens… [however] Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community, but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. (p. 23)

For the Majority, therefore, the word “slavery” was a very specific term with a specific content (born out of historical experience), and its scope could not be stretched beyond that historically-determined content, to include adjusting the “social rights of men and races.” Only the “incidents” of slavery – its “substance” and “visible form” – were made subject to legal prohibition. Denial of civil rights by private parties did not constitute an “incident” of slavery.

The Civil Rights Cases: The Dissenting Opinion

Harlan J. disagreed. In a landmark dissent that has gone down in constitutional history, he observed that:

The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom? (p. 35)

Noting the lack of logic behind such a constrained interpretation, Harlan J. then went on to observe:

I hold that, since slavery, as the court has repeatedly declared … was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State … What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination in respect of legal rights belonging to freemen where such discrimination is based upon race. (p. 38)

And consequently:

They [i.e., the burdens sought to be removed by the Civil Rights Act] are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained except upon the assumption that there is, in this land of universal liberty, a class which may still be discriminated against, even in respect of rights of a character so necessary and supreme that, deprived of their enjoyment in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most essential means of existence, and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line so far as all rights fundamental in a state of freedom are concerned. (pp. 40 – 41)

Between the Majority and the Dissent, therefore, there was a fundamental interpretive disagreement. The Majority believed that words such as “slavery” and “involuntary servitude” had clear and sharply-defined boundaries, determined a priori. These boundaries were fixed by the manner in which the words were been generally used, and by the range of elements that they had been historically believed to have referred to – on one specific and constrained reading of history. Slavery, therefore, was “slavery” – the institution under which one set of human beings was treated as the property of another, and was denied legal freedom. Once that institution was abolished, there was no further role for the Thirteenth Amendment to play.

Harlan J., however, thought otherwise. As he began his dissent by noting, “it is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul.” This may sound hyperbolic and manipulable, but as Harlan J.’s analysis showed, it is anything but. As Granville Austin would note many years later about the Indian Constitution, Harlan J. believed that “fundamental rights were framed in the backdrop of fundamental wrongs.” To understand the scope of fundamental rights, therefore, you had to first ask yourself: what were the fundamental wrongs that a Constitution intended to redress and to transform? This required a broad interpretive horizon, and a deeper historical vision. So where the Majority saw only the legal institution of slavery, Harlan J. saw the conceptions of racial superiority and inferiority that constituted the foundations of that institution. Therefore, while the Thirteenth Amendment used the word “slavery” in order to highlight the primacy of that institution to the Constitution’s transformative vision, and its unmatched moral horror, it also included – by implication – the acts, practices, and institutions of racial superiority and inferiority that formed the warp and the woof of the fabric into which slavery was sewn.

And one such practice – integral to the institution of racism – was the denial and exclusion of people, on the basis of race, by those who owned and controlled those public spaces.

Sabarimala and the Clash over Article 17 of the Constitution

The Supreme Court’s Sabarimala judgment has been heavily debated. Here, I don’t want to re-litigate the multiple contentious points in the judgment, but focus only on one issue: the constitutional disagreement between Chandrachud J. (concurring) and Malhotra J. (dissenting) on the interpretation of Article 17 of the Constitution. This issue was argued in some detail before the Court, but the majority opinions of the Chief Justice and Nariman J. did not consider it. Both Chandrachud J. and Malhotra J. did consider it, however, and as I shall argue, their disagreement bears a striking parallel with the constitutional debate at the foundation of the Civil Rights Cases.

Article 17 of the Constitution prohibits “untouchability” and its practice “in any form.” The question in Sabarimala was whether the exclusion of women between the ages of ten and fifty from the Sabarimala Temple fell within the scope of Article 17. For the purpose of this essay, I am going to bracket the factual debate over whether the prohibition flowed from the fact that the ten-to-fifty age-group was a proxy for menstruating women, or whether it was to do with the brahmachari character of Lord Ayappa. Whatever the origins, the fact is that menstruation was argued as one of the two reasons in Court (as well as set out in an affidavit), and the Court was therefore obliged to examine it. Consequently, putting aside for the moment the specific facts of Sabarimala, let us consider how the two judges analysed the relationship between menstruation-based exclusion and Article 17.

For Malhotra J., the issue was straightforward. Article 17 was intended to prohibit caste-based untouchability. It was an expression of the framers’ revulsion at the most horrific social practice in India, an acknowledgment of the immense suffering that it had caused for centuries, and a promise to make amends. “Untouchability” was a concrete word, with concrete, historically determined content. It could not be extended to include any other form of social exclusion.

Chandrachud J. did not disagree with the centrality of caste-based untouchability to Article 17, or with this sense of what Article 17, at its core, was about. As he noted:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

Chandrachud J. also believed, however, that this was not only what Article 17 was about: there was something more to it:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

In other words, like slavery was the most horrific and most tangible manifestation of racial hierarchy, untouchability was the most horrific and most tangible manifestation of  an exclusionary social order that was grounded in ideas of purity and pollution. There were, however, other manifestations of that order as well. In the case of slavery, it involved exclusion from public spaces, even to the formally “free”. In the case of menstruation, it involved exclusion from public spaces on the ground of the impurity of a biological characteristic predominantly associated with women.

It should be noted that the consequences of menstruation-based taboos are grave and severe. At various places and at various times, they have involved actual prohibitions upon touching women on their period, and/or keeping them in forced seclusion. As this article notes, for example:

According to a 2016 analysis conducted by the Tata Institute of Social Sciences (TISS), only one in eight girls surveyed faced no restrictions at all during their periods. Published in the British Medical Journal, the analysis used data collected from 138 studies and more than 97,000 adolescent Indian girls between 2000 and 2015. Further, 8 in 10 girls surveyed said they aren’t allowed to enter religious shrines when they are menstruating; 5 in 10 girls said they were not allowed to touch people or food in the kitchen; and 2 in 10 said they were asked to sleep in a separate room.

This is not to suggest for one moment that menstrual taboos are equivalent to caste-based untouchabiliy, or that Article 17 of the Constitution accords equivalent concern to the two. The point, however, is this: just like untouchability is at the centre of – and the most savage and vicious embodiment of – a structure of hierarchy, subordination, and violence, menstrual taboos are embodiments of patriarchal institutions that have been historically responsible for the subordination of women; and at the heart of both – caste and patriarchy – are concepts of purity and pollution.

It was this insight that was grasped by Chandrachud J. when he held that social exclusion based on menstrual taboos falls within the scope of Article 17 (a conclusion that he buttressed by extensive references to the Constituent Assembly Debates, where a number of framers believed that by adding the words “in any form” to Article 17, they were striking at the root of all forms of social exclusion based in structures of hierarchy and subordination, without taking away from the centrality of caste-based untouchability). And the similarity with Harlan J.’ s dissent should now be clear: Like Harlan J., Chandrachud J.’s enquiry began with the question of what kinds of injustices the Constitution intended to transform. The meaning and scope of the words of Part III would flow from the answer to that question.

And the answer?

Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

Conclusion 

The title of this essay is borrowed from James Elroy Flecker’s famous poem, “To A Poet A Thousand Years Hence.” Written by one poet to another (unknown) poet in a future time, the poem ends with the lines: “Since I can never see your face,/ And never shake you by the hand,/ I send my soul through time and space/ To greet you. You will understand.” 

Like poets, judges too are in silent conversation with each other, across the gulfs of time and space. Slavery was the so-called “original sin” of the American State’s founding, and it was the one social institution that the framers of the Reconstruction Amendments decided to abolish directly by Constitutional fiat, rather than leave it to legislation. Perhaps unsurprisingly, it was the interpretation of that word that caused one of the most memorable debates in American constitutional history, and one of the most famous dissents of the American Supreme Court. Similarly, it was untouchability that our framers decided was fundamental enough to be prohibited directly by our constitutional order; and in 2018, it is a debate over the interpretation of that word that has brought to the fore two different visions about how to read the Constitution, and more fundamentally, what the Constitution is for. If Harlan J. did send his soul through time and space, he would – perhaps – be content by the manner in which the conversation has now been carried forward by the Indian Supreme Court in 2018.

The Supreme Court Decriminalises Adultery

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adultery, article 14, article 15(1), sex discrimination, sex equality

Today, in Joseph Shine v Union of India, a Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, and decriminalised adultery. As we have discussed before on this blog, this was not a difficult case. The asymmetric nature of the provision – which punishes only the male participant, and that too only on the instance of the husband, and also not if the husband has “consented” or “connived” with respect to the act – is clearly based upon gendered stereotypes that view women as the property of their husbands, and also, as sexually submissive, liable to be “seduced” by men at any moment. Once that fact is clearly understood, there is precious little that can be said to defend the provision under the Constitution.

The four concurring opinions proceed along expected lines. They hold that the asymmetric character of the provision is indeed grounded upon ideas of gender subordination, is therefore “manifestly arbitrary”, and fails the test of Article 14 of the Constitution (and also puts paid to the State’s argument that the provision is necessary for preserving marriages). This would, of course, leave the door open for the legislature to recriminalise adultery through a gender-neutral provision. The Court, however, closes that door as well, noting that criminalisation of what is essentially a private matter – with no broader societal interest – would be an infringement of privacy. These two findings together mean that adultery is gone from the statute books – and will stay gone.

Equality and Non-Discrimination 

In addition to these – expected – lines of reasoning, there are certain interesting aspects on the issues of equality and discrimination in the concurring opinions of Justices Chandrachud and Malhotra, which carry forward the views that they had expressed last month in Navtej Johar v Union of India (the 377 judgment). Justice Chandrachud, for example, reiterates his argument that Article 14 analysis must go beyond the traditional classification test, and focus on substantive disadvantage:

Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. (para 38)

It is important that this argument is made not in the context of Article 15(1), but Article 14. Framing Article 14 in the language of disadvantage means that the five groups that are not mentioned in Article 15(1) (sex, race, caste, religion, place of birth), but are nonetheless analogous to those groups by also representing sites of structural or institutional disadvantage (such, as for instance, disabled persons), are entitled to a more searching and rigorous scrutiny under Article 14, than the traditional (deferential) rational classification standard.

Chandrachud J. then goes beyond Article 14, and tests the adultery provision on grounds of Article 15(1) (non-discrimination on the basis of sex) as well. Advancing his Navtej Johar framework of analysis – which combined a contextual  approach to understanding the effect of the law on the one hand, with an interpretation of Article 15 that prohibits distinctions based on class stereotypes on the other – Chandrachud J. finds that the adultery provision discriminates on grounds of sex, as it is founded in stereotypes about women’s sexual agency, and gender roles within the family. As part of this analysis, he makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the “private sphere.” This leads him to make the following important observation:

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage  In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. (paragraphs 51 – 52)

And, subsequently:

It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’ …  While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. (paragraphs 62 – 63, 67).

The interrogation of the public/private divide is, of course, a significant part of the longer-term project of transformative constitutionalism; here, however, it has two immediate implications. By holding that the family structure and the institution of marriage are not immune from constitutional scrutiny, Chandrachud J.’s concurrence casts a shadow over two provisions, both of which have been discussed before on this blog: the marital rape exception under the Indian Penal Code, and restitution of conjugal rights (Section 9 of the Hindu Marriage Act). The defence to the first is invariably the “preservation of the institution of marriage”, while the latter was, actually, upheld on the basis that “cold constitutional law” could not be introduced into the warmth of the home. Both these justifications are now invalid: what Chandrachud J.’s opinion clarifies is that the autonomy of a social institution (whether the institution of marriage, or the home) is always subordinate to individual right to autonomy, exercised within that institution. Or, to put it another way, the Constitution exists to democratise private relationships, breakdown inequalities and hierarchies within those relationships, and ensure individual dignity and freedom not simply against the State, but also against social institutions and structures.

Justice Malhotra also carries forward her reasoning in Navtej Johar. On Article 14, she holds that as the historical foundation of the adultery provision was, indisputably, in the premise that women were chattels, the classification that it draws (between who is aggrieved and who isn’t, and who can sue and who can’t) is vitiated by an illegitimate constitutional purpose. Therefore, while the classification may be intelligible, and there may exist a rational nexus with a goal, that goal itself (in this case, the subordination of women) is ruled out by the Constitution:

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. (paragraph 12.2)

This is an important step forward in centering the “illegitimate purpose” prong of the classification test under Article 14.

One last point: when adultery was upheld in 1954, it was upheld on the basis of Article 15(3) of the Constitution, which allows for “special provisions” to be made for women and children. Not punishing women for adultery was held to be a “special provision” for their benefit. All four opinions make it clear, however, that Article 15(3) cannot be pushed into service where the entire rationale of the law is discriminatory against women. Justice Malhotra articulates the point most clearly:

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation.” (para 14)

Treating Article 15(3) as an affirmative action provision (even though the language is broader) is, to my mind, an important step forward in articulating a clear and principles interpretation of this clause. Of course, as the example of President v Hugo shows us, this is not always as easy an enquiry as the adultery case allows. Often, disadvantage and stereotypes are bound up together, because stereotyping is the prelude to disadvantage. When you are trying to remedy disadvantage, then, sometimes you need to take stereotypes as your bases to do so. How the Court negotiates this, of course, is a question for the future.

Two Objections 

Two quibbles. The first is procedural. In 1954, the constitutional validity of the adultery provision was upheld by a five-judge bench. The present bench was bound by that. The Chief Justice and Chandrachud J. are both aware of this, and try to get around it. The Chief Justice argues that that case was on the “narrow point” of Article 15(3), while Chandrachud J. argues that it was on the distinguishable point of the woman not being made an abettor. I am unconvinced. Here is the first line of Yusuf Abdul Aziz:

The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution.

 

15(3) or no 15(3), abettor or no abettor, you can’t get clearer than this. The case was about a constitutional challenge to Section 497, and the constitutional challenge was rejected. Maybe there is a case that Article 21 was not raised, and that therefore, a five-judge bench could rule on that. I do think, however, that if Yusuf Abdul Aziz was to be overruled on the grounds of Article 14 and 15, a seven-judge bench needed to be constituted.

Secondly, at one point in his judgment, Nariman J. notes that Hindus never had the concept of divorce, because marriage was considered a sacrament. This is, with respect, historically inaccurate. It is true that among caste Hindus, divorce was an anathema; divorce, however, was frequent and accepted among lower castes, and this is a fact that has been recorded in multiple works of social and cultural history. It does, however, raise some interesting questions about what exactly do we talk about when we talk about transformative constitutionalism. As Karl Klare noted in the famous article that began it all, transformative constitutionalism is not simply about how you interpret the Constitution, but also about how law is taught and discussed. One important part of that is to focus more closely on the sources (both historical and otherwise) that are relied upon in judgments: for example, it is notable that, in a case of gender equality under the Indian Constitution, the first footnote in the Chief Justice’s opinion refers to John Stuart Mill, a British and white man, who lived in the 19th century. Transformative constitutionalism, I feel, must also deepen the sources that it relies upon – otherwise, we’ll still be decriminalising adultery while also making sweeping statements that are both incorrect and result in historical erasure, about the nature of marriage and divorce “among the Hindus.”

The Aadhaar Judgment: A Dissent for the Ages

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aadhaar

“Constitutional guarantees cannot be subject to the vicissitudes of technology.” (Chandrachud J., dissenting, paragraph 269)

As we discussed in the last post, the Majority judgment in the Aadhaar Case is premised upon a series of factual assumptions, which are either unsubstantiated, or lifted from a Power-Point presentation given by the UIDAI Chairperson in the Court. The Majority agrees, for instance, that profiling is bad, and surveillance unconstitutional – but finds, on fact, that the Aadhaar framework does not permit either. The Majority agrees that data minimisation is a constitutional principle, but finds, on fact, that Aadhaar does collect minimal data. And the Majority agrees that the legal standard is that of proportionality, but finds that because of its “uniqueness”, biometric authentication successfully targets deserving beneficiaries, and that therefore, is proportionate.

For this reason, while reading Justice Chandrachud’s dissenting opinion, there is a sense that the two judgments disagree not only on legal standards (which they do), but also, on something far more basic: they disagree about the very state of the world within which Aadhaar operates.

Why does this matter? It matters because Judges are entitled to declare the law – and indeed, bring it into being by declaring it – but facts have an independent existence. For example, one may take sides on whether the Majority or Justice Chandrachud is correct in holding that Section 59 of the Aadhaar Act validates past action, while acknowledging that the Majority – by virtue of being the Majority – has laid down the law. However, if the Majority and Justice Chandrachud disagree on the uniqueness of biometrics, or on the existence of exclusion, then – quite simply – one of them is right, and the other one is wrong. And if the Majority is wrong on facts, then serious questions must be asked about the sustainability of that judgment.

Overarching Assumption: The Uniqueness of Biometrics

As we saw, the factual foundation of the Majority Judgment is that biometrics are unique. This foundation is at the heart of the Majority’s decision to uphold Section 7, as well as the mandatory Aadhaar-PAN linkage. And it is with this foundational assumption that Chandrachud J. takes issue. In paragraph 132, he notes that “errors will inevitably occur” (with biometric use). In paragraph 150, he puts the point in a stronger way: “The uniqueness of a fingerprint in forensic science remains an assumption without watertight proof.” Unlike the Majority, he then goes on to substantiate this claim, citing scholarly books (Fn. 154 & para 260) and the text of the Aadhaar Act itself, which envisages updation of biometrics. This becomes crucial in the latter part of the judgment dealing with exclusion, where (as we shall see) both authentication failures and the existence of false positives and false negatives are a crucial reason for his finding of unconstitutionality.

This foundational factual disagreement between the Majority and Justice Chandrachud is important – and virtually determinative – to the outcome of the case. Recall that the Majority elects to pitch its case very high: not merely that a biometric database is good or efficient, but that it is flawless: i.e., there cannot be duplicates. The Majority does this because it makes the rest of the case very easy. If Aadhaar is truly unique, then ipso facto, it efficiently targets beneficiaries (and so, Section 7 is upheld) as well as fake PAN Cards (and so, S. 139AA is upheld); and furthermore, “unproven” stories of exclusion cannot be taken seriously (and, in any event, are being dealt with by a Circular). There is no need to engage in a messy proportionality analysis about whether biometric authentication actually accomplishes what the State claims it does, and whether it is indeed the least restrictive way of accomplishing it. However, by stark contrast, Chandrachud J.’s finding that biometrics can be erroneous – as we shall see – opens his judgment up to a large number of issues: do errors disproportionately affect the most vulnerable? Shouldn’t failure be forestalled, rather than compensated? And so on.

Surveillance

Here again, Chandrachud J.’s disagreement with the Majority starts in factual analysis. Chandrachud J. notes that profiling and surveillance is possible under the existing Aadhaar framework. This is because, in his view, according to Regulation 17, requesting entitles can store biometric information for a temporary period (paragraph 126), that through the IP address, meta data can be used to track location and profile (para 227), that there is the access third-party vendors to the database, and – most crucially – that linking of databases can take place:

The risks which the use of Aadhaar “for any purpose” carries is that when it is linked with different databases (managed by the State or by private entities), the Aadhaar number becomes the central unifying feature that connects the cell phone with geo-location data, one’s presence and movement with a bank account and income tax returns, food and lifestyle consumption with medical records. This starts a “causal link” between information which was usually unconnected and was considered trivial. Thus, linking Aadhaar with different databases carries the potential of being profiled into a system, which could be used for commercial purposes. It also carries the capability of influencing the behavioural patterns of individuals, by affecting their privacy and liberty. Profiling individuals could be used to create co-relations between human lives, which are generally unconnected. (paragraph 244)

In addition:

When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. It must be noted while Section 2(k) of the Aadhaar Act excludes storage of individual information related to race, religion, caste, tribe, ethnicity, language, income or medical history into CIDR, the mandatory linking of Aadhaar with various schemes allows the same result in effect. For instance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. What the Aadhaar Act seeks to exclude specifically is done in effect by the mandatory linking of Aadhaar numbers with different databases, under cover of the delivery of benefits and services. (paragraph 247)

On every point, therefore, there is a direct factual clash between the Majority and Chandrachud J. Recall that the Majority categorically says that merging of data silos cannot happen, that that is a fundamental reason why profiling and surveillance is impossible. Chandrachud J., on the other hand, makes it clear that the seeding of Aadhaar across databases serves to break the silos. As I had pointed out above, this is not a matter of different legal interpretation, with the Majority’s view being “correct” simply because it is the Majority. Here, one of them is right and one of them is wrong.

Privacy

Chandrachud J.’s disagreement with the Majority on this is legal in character. Recall that the Majority undertakes the proportionality test by diminishing our privacy interest in our bodily characteristics, and devaluing the importance of biometric details (fingerprints or iris scans). By contrast, Chandrachud J. holds that it our privacy interests in our biometric details is high: both from an informational self-determination point of view, as well as from a bodily integrity and physical safety point of view (paragraph 125). In particular, Chandrachud J. avoids two pitfalls that the Majority falls into: that is, mixing up “minimal information (collected)” with “minimal interference with privacy”, and applying the American “reasonable expectation” standard. Ultimately, however, the difference is one of framing: the Majority uses the fact that biometric details are given frequently and for a multiplicity of purposes, to argue that we don’t have a heightened privacy interest in them. For Chandrachud J., however, that is irrelevant: what is relevant is that a “carefully designed” biometric system may nonetheless preserve privacy (such as, for instance, ensuring anonymity), and that therefore, that is the standard we must measure Aadhaar against. (paragraph 127) And within this framework, he finds that the absence of consent within the Act, the extent of information disclosed, the expansive scope of the term “biometrics”, the burden placed upon the individual to update her own biometrics, and lack of access to the record, cumulatively constitute a serious infringement of privacy.

Section 7 and Proportionality 

Chandrachud J. accepts that the Aadhaar Act – and Section 7 – are designed to fulfil a “legitimate State purpose” – that is, making the welfare delivery system better and more effective. For him, however, the Programme fails on the proportionality prong. As he observes:

The test of proportionality stipulates that the nature and extent of the State’s interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting). (para 198)

This paragraph reflects three crucial differences in the way that the Majority and Justice Chandrachud approach proportionality in this case. First – as we have seen above – the Majority holds that the invasion of privacy and dignity is minimal (and it doesn’t even consider the issue of choice), thus guaranteeing a very low threshold of justification to the State. Secondly, having made the assumption that biometric authentication is flawless, the Majority cannot – and does not – admit that its use can actually impede access to basic entitlements. In the Majority’s approach, therefore, the question of entitlements comes on the other side of the justificatory ledger (i.e., the State promoting access to entitlements through Aadhaar). And thirdly, the factual assumption of accurate targeting and improvement of welfare delivery drive the Majority into a pre-decided “balancing” between minimal impairment of privacy and significant plugging of welfare leaks. Chandrachud J., however, remains more circumspect: he carefully notes that the plugging of welfare leakage and better targeting is only “purported.”

The word “purported” informs Chandrachud J.’s proportionality analysis. As he notes, this is not a domain where the Court has to be excessively deferential to the State’s assertions. This is especially true because a nation-wide biometric programme is not merely one of those initiatives that applies to a one-time transaction. Rather:

… by collecting identity information, the Aadhaar program treats every citizen as a potential criminal without even requiring the State to draw a reasonable belief that a citizen might be perpetrating a crime or an identity fraud. When the State is not required to have a reasonable belief and judicial determination to this effect, a program like Aadhaar, which infringes on the justifiable expectations of privacy of citizens flowing from the Constitution, is completely disproportionate to the objective sought to be achieved by the State. (paragraph 217)

In this context, the lack of verification mechanisms by UIDAU, no proper exemption handling process (if authentication fails), the lack of accountability mechanism with respect to the UIDAI (para 235), the absence of an overarching regulatory framework, and the vague and unbridled nature of Section 7, which allows it to interpreted in an open-ended way, without checking whether each separate use violates the proportionality standard (paragraph 248), all militate against a finding of proportionality. And the position is sealed when Chandrachud J. observes that:  “the state has failed to demonstrate that a less intrusive measure other than biometric authentication will not subserve its purposes.”

This time as well, the difference between the Majority and the Dissent is purely legal: recall that the Majority had argued that the Petitioners had failed to demonstrate an alternative; Chandrachud J., however, reverses the legal burden: it is for the State to demonstrate that there is no feasible alternative, since it is the State, after all, that is infringing my rights. As should be obvious, in cases where there is no evidence on other side, this finding of burden changes everything.

The Argument from Inequality

Chandrachud J’s acknowledgment that biometric authentication is error-strewn (something that the Majority refuses to acknowledge) leads him to study the exclusion issue carefully (which the Majority dismisses in a line). Exclusion is directly linked with discrimination, because – as he notes – “exclusion as a consequence of biometric devices has a disproportionate impact on the lives of the marginalized and poor.” (para 253) He deals in some detail with the work of Virgnia Eubanks, who – using the concept of the “digital poorhouse” – has demonstrated that the discriminatory effects of technological solutions are inevitably visited upon the most vulnerable. Consequently, Chandrachud J. holds that “the fate of individuals cannot be left to the vulnerabilities of technological algorithms or devices.” (para 262).

He then substantiates this by looking at the Economic Survey of 2016-17, government reports involving pilot projects in Andhra Pradesh, and at the work of grassroots scholars such as Jean Dreze and Reetika Khera, to show that the exclusion percentages have been substantial (paragraphs 263 – 268).  Now recall that the Majority dealt with this issue in a line, noting that the Attorney-General had a made a statement that people would be allowed to use another identification, and that there was also a Circular providing for this. In a following post, I will explain quite how bizarre this approach is, which upholds an unconstitutional statute on the basis of a promise to interpret it fairly; for now, however, Chandrachud J. has an answer himself, when he notes:

Technological error would result in authentication failures. The concerns raised by UIDAI ought to have been resolved before the implementation of the Aadhaar project. Poor connectivity in rural India was a major concern. The majority of the Indian population lives in rural areas. Even a small percentage of error results in a population of crores being affected. Denial of subsidies and benefits to them due to the infirmities of biometric technology is a threat to good governance and social parity. (paragraph 262)

This is a crucial observation. What Chandrachud J. is saying is that once it is established that exclusions will occur – leading to deprivation of rights – then the State bears the burden of first resolving these issues before rolling out the project. Once again, the contrast with the Majority could not be starker. The Majority notes that Aadhaar is an ongoing project, and “glitches” must be ironed out as they present themselves. To this, Chandrachud J. replies: “you cannot be ironing out the glitches when Articles 14 and 21 are at stake.” In other words, people – especially the most vulnerable – cannot be used as experimental subjects for improving the efficiency of technology, as that would violate every constitutional principle in the book:

No failure rate in the provision of social welfare benefits can be regarded as acceptable. Basic entitlements in matters such as foodgrain, can brook no error. To deny food is to lead a family to destitution, malnutrition and even death. (paragraph 263)

There is, of course, a bitter irony here. In the passive euthanasia judgment, it was the Chief Justice who had first articulated this principle, when he asked whether the individual was to be turned into some kind of a guinea pig for an experiment. Unfortunately, it would take only a few months for him to forget, and it would be left to a dissenting opinion to remember.

A Dissent for the Ages: Individual, State, Identity 

Justice Chandrachud’s dissenting judgment recognises what the Aadhaar case was truly about: it was the first time in its history that the Court was called upon to answer serious questions about the interface between technology, the relationship between individual and State, and the Indian Constitution. The judgment is shot through with a keen awareness of this fact. Indeed, in paragraph 3, Chandrachud J. notes that “our decision must address the dialogue between technology and power.”

These are not careless words. The Aadhaar case was all about the relationship between the individual and the State, and how technology was altering – and even potentially inverting – that relationship. It was about how power worked itself through technology, through algorithms, becoming the arbiter of peoples’ rights and entitlements. And it was, at its heart, a question about what our Constitution had to say about that.

This is something that the Majority, in its techno-utopian celebration of greater efficiency and unique identification, misses entirely: the other side of the story, the contrapuntal notes. It is the side that comes across with particular clarity at various points in the dissenting opinion: when Chandrachud J. discusses how unique data sets can lead to “perpetuating of pre-existing inequalities” (paragraph 10), or when he refuses to play-off civil rights and socio-economic rights against one another, or in his attention to how biometric systems are “most aggressively” tried out with welfare recipients (paragraph 120). And it comes across most vividly in a brief discussion about identification and identity, an issue that plagued the hearings throughout. Consider, for example, the dissent’s discussion of how the concepts of “identity” and “identification” are being merged with the advent and technology (and compare, once again, with the Majority’s celebration of a “unique identity”):

Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. That concept is now “flipped” so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual. (para 185)

A finding that immediately leads to the following conclusion:

The submission which has been urged on behalf of the petitioners is that an individual entitled to the protection of the freedoms and liberties guaranteed by Part III of the Constitution must have the ability to assert a choice of the means of identification for proving identity. Requiring an individual to prove identity on the basis of one mode alone will, it is submitted, violate the right of self-determination and free choice. (para 185)

In other words, in an age when identification has subsumed identity, the individual must be granted a choice in the means by which she elects to “identify” herself to the State. It is a simple enough concept, but radical in its application.

They say that Minerva’s Owl takes flight at dusk. And so, you may well ask: what is the point of this dissent, when the Supreme Court spent six years busily allowing Aadhaar to become a fait accompli, and then legitimised it through a Majority opinion anyway? To that, perhaps, there is only one answer: the great cases are always 4 – 1 in favour of the State.

Until the 1 is resurrected. And becomes the pathway for a future that is still struggling to be born.

—

(The writer assisted Mr. K.V. Viswanathan, senior counsel for one of the Petitioners challenging Aadhaar).

“Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement

Tags

homosexuality, s. 377, section 377, sexual orientation, Sexuality, transformative constitution

Last year, in Justice K.S. Puttaswamy v Union of India, the Supreme Court did a remarkable thing. While declaring that privacy was a fundamental right under the Indian Constitution, five out of nine judges also noted that the Court’s 2013 judgment in Suresh Kumar Koushal v Naz Foundation (an entirely unconnected proceeding) had been wrongly decided. In Koushal, the constitutionality of Section 377 of the Indian Penal Code – that criminalised “carnal intercourse against the order of nature” – had been upheld, and the 2009 Delhi High Court judgment reading it down to exclude consenting same-sex relations had been overturned. How deeply the Koushal Court had erred (in the view of the Puttaswamy bench) was evident from the fact that in his plurality opinion, Chandrachud J. singled it out as one of the two “discordant notes” in constitutional history (the other was the Emergency-era ADM Jabalpur judgment).

The privacy judgment made it clear that Koushal was living on borrowed time. That time came to an end today, when a Constitution Bench of the Court, in Navtej Johar v Union of India, formally overruled Koushal, effectively restored the Delhi High Court judgment in Naz Foundation, and unambiguously held that the LGTB+ community was entitled to equal rights under Articles 14, 15, 19, 21, and the rest of the Constitution’s fundamental rights chapter.

Four concurring judgments were delivered in Navtej Johar. While concurring on the outcome of the case – that Section 377 violated Article 14 (equal protection of laws), 15(1) (non-discrimination on grounds of sex), 19(1)(a) (freedom of expression) and 21 (right to life and personal liberty) – the judges came at the issues from different angles. In this essay, I shall discuss the different strands of constitutional reasoning that we find in Navtej Johar, and their implications for the future.

A. The Chief Justice and the Primacy of Choice 

The Chief Justice wrote for himself and Justice Khanwilkar. His is a wide-ranging judgment, but at its heart lies the idea of choice. This is not as straightforward an argument as it seems at first blush. Recall that there has been a long-standing debate about whether sexual orientation is “natural” and “immutable”, a question of choice, or somewhere in between upon a spectrum. It has always been intuitively tempting to argue that sexual orientation is simply a question of having been “born this way.” It is tempting because if sexual orientation is “natural”, and something beyond the individual’s power to alter, then criminalising it is ipso facto irrational. Our criminal law is based upon the idea of holding people to account for acts that they are responsible for. How then can you criminalise something that is inherent, and which cannot be controlled?

The “born this way” discourse, however, has been strongly criticised. As this article points out, for example:

If biology determines our expression, then there is no reason to think about making better or different worlds. It has all been decided, from the moment we became Homo sapiens. Yet if we recognise sexuality as constructed, we open up essential discussions about some of the most important aspects of life. Who are we sexually intimate with, and how? What do we do with the consequences of sexual intimacy (offspring and health)? Who is responsible for children’s lives, development and education in a society? The arrangement of sexual relations is the key social building block of society’s reproduction. Hence the importance of gay marriage. Yet we have a surprisingly limited way of engaging this conversation; indeed, biological determinism helps us avoid the issue altogether. A host of social issues are pressing down upon us, and we cannot effectively address them if we deny the reality of the human condition, including sexuality, and thereby close off discussions before they begin.

And, as the work of Foucault and other scholars has demonstrated, essentialising sexuality (and sexual orientation) runs the risk of trapping people in pre-constructed identities, in a manner that – in the long run – is anything but emancipatory.

To the judgment’s merit, it keeps both these propositions in an equilibrium, and refrains from choosing one over the other. So, in paragraph 9, the Chief Justice observes:

When we talk about identity from the constitutional spectrum, it cannot be pigeon-holed singularly to one‘s orientation that may be associated with his/her birth and the feelings he/she develops when he/she grows up. Such a narrow perception may initially sound to subserve the purpose of justice but on a studied scrutiny, it is soon realized that the limited recognition keeps the individual choice at bay.

“Natural orientation” and “choice” are discussed in a complementary manner throughout the judgment (see, e.g., paragraphs 109 and 148). Admittedly, at various points in the judgment, the Chief Justice comes close to slipping back into the former type of vocabulary, using words such as “inherent”, “innate”, “by birth”, and so on (paragraph 143 – 144). A holistic reading of the judgment, however, makes it clear that the concept of choice (that he also frames as individual self-determination) is as important to the exercise of constitutional rights as the “naturalness” of sexual orientation. Indeed, in paragraph 140, while defining the aspects sexual orientation, the Chief Justice refers both to “inherent orientation” and “demonstration of choice.”

And, perhaps most importantly, it is in the language of choice that the Chief Justice rejects Koushal’s argument (indeed, the only argument actually made in Koushal) that as Section 377 only criminalises “acts” and not “persons”, it does not violate constitutional guarantees:

… individuality of a person and the acceptance of identity invite advertence to some necessary concepts which eventually recognize the constitutional status of an individual that resultantly brushes aside the ―act‖ and respects the dignity and choice of the individual. (paragraph 81)

Additionally, the argument from dignity is also framed in the language of choice:

Dignity while expressive of choice is averse to creation of any dent. When biological expression, be it an orientation or optional expression of choice, is faced with impediment, albeit through any imposition of law, the individual‘s natural and constitutional right is dented. (paragraph 132)

This articulation of “choice” then becomes an important basis of the Chief Justice’s finding that Section 377 violates the Constitution. Because it disrespects individual choice, Section 377 is both irrational and “manifestly arbitrary”, and violates Article 14 (paragraph 240). This is, of course, in addition to the violation of expressive rights under Article 19(1)(a), and the right to privacy under Article 21 – which too is defined in terms of “intimacy in privacy as a matter of choice” (Conclusion X).

B. Justice Nariman and the Presumption of Constitutionality

Justice Nariman’s opinion shares many of the interpretive commitments of the Chief Justice. He too holds that Section 377 violates dignity (paragraph 79), and that it is “manifestly arbitrary” (paragraph 82). Nariman J. arrives at the second conclusion from a slightly different route. He examines the 2017 Mental Healthcare Act, which expressly prohibits discrimination on grounds of sexual orientation (in the domain of mental health). Combining this with scientific evidence, he notes that the natural/unnatural distinction that is at the heart of Section 377 has no rational basis, and consequently, violates Article 14 (paragraph 82).

By far the most interesting aspect of Nariman J.’s opinion, however, is his holding that pre-constitutional laws do not enjoy any presumption of constitutionality. He notes that:

The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws – it can only enact laws which do not fall within List II of Schedule VII of the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Indian Penal Code.

While I believe this is a correct argument, it is nonetheless an incomplete argument. Nariman J. does not tackle one important objection: that Parliament’s failure to repeal a pre-constitutional law indicates an implicit acceptance. It also seems to prove too much (for example, could someone challenging the Indian Contract Act of 1872 argue that there is no presumption of constitutionality?). Consequently, I would suggest that Nariman J.’s argument requires to be slightly deepened: the reason why pre-Constitutional laws should not carry a presumption of constitutionality is because, insofar as they affect fundamental rights, they impose a double-burden upon the individuals they impact: first, these individuals had no say in the framing of these laws (since they were passed by a non-democratic colonial regime); and secondly, now that these laws exist, it is those who suffer their effects who have to mobilise and convince parliament to repeal them. It is this double-burden that is unacceptable, and therefore mandates that the presumption of constitutionality be withheld from those colonial laws that affect fundamental rights (I have made this argument in greater detail elsewhere).

C. Justice Chandrachud and Indirect Discrimination

For me, the most interesting – and complex – argument in the case was that Section 377 violates Article 15(1) (non-discrimination on grounds of sex), and a combined reading of Articles 15 (non-discrimination) and 14 (equality before law). In Chandrachud J.’s opinion, this argument receives detailed treatment. As a prelude, he begins with the following, critical observation:

Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. (paragraph 27)

This is an important rebuke, not just to the Koushal Court, but also to the dominant strand of equality thinking on the Supreme Court, which – even in 2018 – continues to apply the “classification test” to judge equality violations (i.e., a law is unconstitutional if there is either an “unintelligible differentia” between the things that it classifies, or if the classification bears no rational nexus to the State goal).

Chandrachud J. goes on to note:

Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.

What does this “substantive content” of equality entail? This takes us to the heart of Chandrachud J.’s judgment, which his treatment of the Article 15(1) claim. As he notes, Indian courts have historically interpreted the statement “The State shall not discriminate on grounds … only of sex” in a highly formalistic manner, and have upheld laws that – in their language – use more than one or a differently worded ground (for example, in Koushal, the Court held that because Section 377 only criminalised “carnal intercourse against the order of nature”, there was no question of discriminating against identities). This, however, is flawed: what matters is the effect of law upon the exercise of fundamental rights. (paragraph 34)

The effect of law must be understood by taking into account the broader social context within which law is embedded. It must therefore take into account “the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context.” (paragraph 36) Drawing from progressive gender equality judgments such as Anuj Garg, Chandrachud J. concludes that:

A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has on affected individuals and on their fundamental rights. Any ground of discrimination, direct or indirect, which is founded on a particular understanding of the role of the sex, would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

The words “direct or indirect” are crucial, since this is the first time that the Supreme Court has explicitly recognised the concept of indirect discrimination (i.e., where facially neutral laws – such as S. 377 – nonetheless have a disproportionate impact upon a segment of the population).

How must Section 377 be analysed within this constitutional framework? After recording the experiences of LGBT+ individuals subjected to the “shadow of criminality”, Chandrachud J. notes that “Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles.” (paragraph 44) How does it do so? The answer comes immediately afterwords:

If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. (paragraph 44)

It is in this manner that Chandrachud J. draws together the indirectly discriminatory character of the facially neutral S. 377, the effects test, the prohibition of “sex” discrimination under Article 15(1) in a case about “sexual orientation”, and the importance of social context to the enquiry.  Here is how the argument goes:

1. Article 15(1) prohibits sex discrimination.
2.  Discrimination on grounds of sex is premised upon stereotypes about appropriate gender roles, and the binary between “man” and “woman”.
3. It is these stereotypes about gender roles that constitute the bases of criminalising same sex relations.
4. Section 377 may be neutrally worded, but it’s effect is primarily – and disproportionately – upon the LGBT community. It is therefore indirectly discriminatory on grounds of sexual orientation.
5. Since the basis of that indirect discrimination lies in stereotypes about gender roles (the background social context), S. 377 violates Article 15(1) of the Constitution.

Consequently, to sum up:

Statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” Thus, laws that affect non-heterosexuals rest upon a normative stereotype: “the bald conviction that certain behavior-for example, sex with women-is appropriate for members of one sex, but not for members of the other sex. (paragraph 51)

As Terry Eagleton wrote in Saint Oscar, his play about Oscar Wilde:

You hold that a man is a man and a woman is a woman. I hold that nothing is ever purely itself, and that the point where it becomes so is known as death. I therefore demand to be defended by metaphysicians rather than by lawyers, and that my jury should be composed of my peers – namely, poets, perverts, vagrants and geniuses.

I do not think it is an exaggeration to say that today represents the most advanced interpretation of Article 15(1) and non-discrimination that has come out of the Supreme Court thus far.

Chandrachud J.’s judgment then goes on to examine Article 19(1)(a), focusing on how S. 377 inhibits the sexual privacy of the LGBT+ community, by forcing them into the closet (paragraph 61). He is careful to notice perhaps the only shortcoming of the Delhi High Court judgment, which was to restrict the right to “private spaces.” Like his judgment in Puttaswamy, Chandrachud J. once again critiques the facile public/private binary, and notes that “the right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference.” (paragraph 62) He goes on to discuss the rights to privacy and autonomy (paragraph 65), holds that Article 21 also protects a right to intimacy (paragraph 67), and includes a detailed discussion on how Section 377 inhibits the right to health (including the right to mental health) (Part G). There is also an extended discussion of the limits of criminal law, which concludes with the now-familiar observation that harm to others is the only adequate ground for criminalisation. (paragraph 137)

D. Justice Malhotra and a Truer Vision of Equality  

Justice Malhotra penned a brief, concurring judgment, that discussed Articles 14, 15, 19(1)(a) and 21 in turn. Her judgment, however, takes immutability as the basis for the 14/15 violation. In her view, Section 377 violates Article 14 because:

[It] creates an artificial dichotomy. The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia. (paragraph 13)

In my analysis of the Chief Justice’s opinion, I have noted that this view is controversial. Here, however, I want to focus on something else: the second sentence. Malhotra J. argues that where a legislation discriminates on the basis of an “intrinsic or core trait”, it ipso facto fails Article 14; that is, it cannot be counted as a reasonable classification. However, there is nothing inherent about such discrimination that makes it an “unintelligible differentia”, or precludes it from having some “rational nexus” with a possible goal. Consequently, Malhotra J. actually advances a more radical reading: she argues that the very concept of equality under Article 14 rules out certain kinds of classifications at the threshold. In her view, legislation based on an “intrinsic or core trait” fails that threshold inquiry. I would put it slightly differently: legislation based on a core trait (related to personal autonomy), a trait that has been a historical or present site of systemic discrimination, is ruled out under Article 14. This is because, for the reasons given above, I believe that the language of “intrinsic” or “immutable” characteristics is a dangerous road to go down. That, however, is a minor point of difference: what is crucial is that Malhotra J.’s reasoning – in its own way, as Chandrachud J in his way – opens up the transformative potential of Article 14 and 15(1).

Malhotra J.’s argument is important for another reason. In Dipak Sibal, the Supreme Court held that in addition to intelligible differentia and rational nexus, Article 14 also required a “legitimate State purpose.” However, neither Dipak Sibal nor any subsequent case clarified what State purposes may be illegitimate. In Malhotra J.’s opinion, we now have an answer: whatever the differentia, and whatever the nexus, the State is not permitted, under Article 14, to disadvantage groups on the basis of an “intrinsic or core” trait.

E. Odds and Ends 

Malhotra J.’s transformative understanding of Article 14 is the best point for us to segue into some of the overarching themes of the judgment. Why is it that discriminating on the basis of an “intrinsic or core” trait is ruled out by the constitutional vision of equality? Two themes – present in all four judgments – answer the question: constitutional morality and transformative constitutionalism. The Chief Justice notes, for example:

Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time. (para 116)

Justice Nariman observes:

It must not be forgotten that Section 377 was the product of the Victorian era, with its attendant puritanical moral values. Victorian morality must give way to constitutional morality as has been recognized in many of our judgments. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. (para 78)

And Chandrachud J.:

The Constitution envisaged a transformation in the order of relations not just between the state and the individual, but also between individuals: in a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos permeates and infuses these relations. (para 52)

The wheel has turned full circle. It was the Delhi High Court, in Naz Foundation, which first introduced all of us to the grammar of “constitutional morality”, and linked it to the Objectives Resolution, and the qualities of inclusiveness and pluralism at the heart of the Constitution. And, nine years later, this vision of constitutional morality lies at the heart of the decriminalisation of same-sex relations. The reason why Malhotra J. is correct when she holds that legislation discriminating on the basis of “intrinsic or core” traits is ipso facto violative of equality, is because equality – viewed through the lens of constitutional morality – is defined by the values of pluralism and inclusiveness: different forms of life and different ways of being are guaranteed equal treatment, equal concern, and equal respect under the transformative Indian Constitution.

The Road Ahead 

What lies ahead? This was, after all, a limited case: it was a constitutional challenge to Section 377 of the IPC. But as the judges themselves acknowledge, there is much work to be done ahead. As the Chief Justice notes, in his judgment:

Equality does not only imply recognition of individual dignity but also includes within its sphere ensuring of equal opportunity to advance and develop their human potential and social, economic and legal interests of every individual and the process of transformative constitutionalism is dedicated to this purpose. (paragraph 104)

Chandrachud J. likewise notes, in his conclusion, “members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.” This, clearly, indicates at a future beyond mere decriminalisation. It indicates towards civil rights, a guarantee against horizontal discrimination in the domains of housing, education, and access to services (under Article 15(2)), a potential right to affirmative action (on the lines of the NALSA v Union of India), and of course – eventually – equal marriage, if demanded. How rocky the road will be towards full and equal moral membership, of course, remains to be seen.

What of other domains? The judgments of Chandrachud J and Malhotra J, as I have argued above, open new windows for understanding and interpreting Articles 14 and 15(1). Will we see them play out in the future? Will Chandrachud J.’s observations about the limits of criminal law have an impact on litigations concerning bans upon dietary preferences? Will the salutary observations about transformative constitutionalism and the value of the individual percolate into other cases concerning State power and individual rights? In the coming months and years, these questions will be answered.

For today, it remains to be said: five years ago, the Supreme Court committed a grievous error in Koushal v Naz Foundation. Today, the Court has atoned. “Civilization“, observes Chandrachud J., “can be brutal.” That brutality was felt on 11th December 2013, and in the days and months that followed. But today is about the Constitution, and today is about emancipation and liberation.

Navtej Johar v Union of India is a judgment worthy of our transformative Constitution.

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(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organisations challenging S. 377 before the Court.)

Guest Post: Parliamentary Privileges and the Transformative Constitution – A Response to Karan Lahiri

Tags

Parliamentary Privileges, transformative

(This is a guest post by Goutham Shivashankar.)

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This post is a response to Karan Lahiri’s absolutely fascinating post, on the recent decision of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors. Lahiri argues that Chandrachud’s J.’s invocation of the idea of the “Constitution as a transformative document”, was incorrect in the context of legislative privileges. To Lahiri, Article 105 of the Constitution, which provides for powers, privileges and immunities of the Houses of Parliament, is an instance where the Constitution is not “transformative” – it rather creates “explicit continuities” with India’s colonial past. Lahiri then asserts that Article 105 is better viewed as provision that is a “gateway to transformation”, since its wording imbues the Parliament with transformative potential in defining its privileges. Thus, Lahiri’s argument has two components: (i) that the Constitution was not transformative on the issue of legislative privilege but was rather an explicit colonial continuity; and (ii) that Article 105 though not transformative in itself, was pregnant with transformative potential. This post is not very concerned with part (ii) of Lahiri’s argument. It does, however, engage with part (i) seriously. I argue that the Indian Constitution was transformative qua the issue of legislative privilege, in at least one sense of the term, and in exactly the sense that Lahiri asserts it not to be. Moreover, it certainly cannot be regarded as a “colonial continuity”. In fact, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Fixing Concepts – “Transformative Constitution” and “Colonial Continuity”

It would help to fix concepts a little here. What do we mean by a “transformative constitution” and “colonial continuity”?

 Transformative Constitution

 As I understand it, there can be at least two conceptions of a “transformative” statute or constitution. In one sense, it could simply mean that the law “stands transformed” by virtue of statute or constitution that is enacted, i.e., a new law is brought into force that represents a radical and clean break from the position of law that preceded it. Or it could mean that the statute or constitution “has a transformative purpose”, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action. The first conception focuses on the change in the content of the law itself and asks if the law has transformed beyond recognition. The second conception focuses on whether the change in law (which may or may not in itself be radical) is purposed to transform something else (other than the law) radically.

Differentiating between these two conceptions of a “transformative constitution” has analytical utility. It recognizes the possibility that the parts of the constitution can be transformative in the former sense, i.e., it brings about a radical change in the content of the law, while not necessarily having a “transformative purpose”. Similarly, a transformative purpose could potentially be achieved through minor changes in the law that could not be regarded as transformative of the content of law.

In Kalpana Mehta, Chandrachud J., appears to use the “transformative constitution” in both senses. He states that the constitution’s “vision is about achieving a social transformation… that seeks to place the individual at the forefront of its endeavors” (transformative purpose). This transformative purpose is achieved by transforming the content of law. Thus, he states:

“Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state… … For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose.”

Thus, as noted by Chandrachud J., the conferment of fundamental rights to individuals was transformative in both senses of the word. It was purposed to achieve social transformation, and was transformative in the content of Indian law, by granting rights to individuals against the state in a radical, new way.

However, a law need not always be transformative in both senses of the term. In some cases, the content of law could stand radically transformed because of a preceding social transformation. Here, the law could stand transformed by a new “constitution”, but not with any transformative purpose. As I will seek to demonstrate here, the Constitution clearly transformed the “content” of the law of legislative privilege in India. Whether this change in the law’s “content” on legislative privilege was purposed to bring about social transformation of another sort, or whether it was occasioned by a preceding/underlying social transformation is less clear.

Colonial Continuity

It would also help to fix the meaning of the term “colonial continuity”. I should note that Chandrachud J. does not use this term, which Lahiri uses in his blog post. However, Lahiri is not clear on what he means by the term, though he indicates that Art. 105, by referring to the British House of Commons “establishes a colonial continuity”. If by this, he merely means that any constitutional provision referring to / establishing linkages with an institution of the erstwhile colonizer establishes a “colonial continuity”, then the concept does not really have much analytical utility. It says nothing about whether there was anything inherently “colonial” about the law on legislative privilege, and whether this “colonial” aspect of the law was “continued” by the Constitution. If, however, Lahiri means “colonial continuity” to refer to the continuation of a fundamental feature of colonial project, then Article 105 does no such thing, and Lahiri is incorrect in stating that it does. In fact, as I see, Article 105 is a radical break from the colonial law on legislative privilege in India, and the constitution fundamentally “transformed” the law in this regard, as I will illustrate below.

Chandrachud J. on legislative privilege

 Chandrachud J. seems to assume in his opinion that the law on parliamentary privileges as enacted by the Constitution was purposed to certain ends of social transformation, i.e., the assertion of rights and access to justice. This is clear when he states:

 

“Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice.”

He provides little evidence to substantiate any such transformative purpose to Article 105 of the Constitution, and this is rightly pointed out by Lahiri in his post. Thus far, Lahiri’s analysis is excellent. I also have no quarrel with the larger point which Lahiri makes, i.e., that there must be rigour in invoking the notion that the constitution is a “transformative document” when it is sought to be used as an interpretive tool. When invoking the “transformative constitution” as an aid to interpretation, judges must necessarily ask: (i) whether or not that part of the Constitution that they are interpreting was transformative: (ii) in what sense was it transformative, i.e., did it transform the content of pre-existing law? (or) did it have a transformatory purpose?. The “transformative constitution” should not be used as a carte blanche to interpret any and all parts of the Constitution in a free-wheeling liberal way. Indeed, Lahiri’s is an important cautionary note struck at a time when the idea of the “transformative constitution” appears to be gaining substantial recognition. Too often have Indian courts and academics used flowery language to mask flawed logic and lazy reasoning.

Why Article 105 cannot be regarded a “colonial continuity”

After correctly identifying Chandrachud J’s failure to identify or argue for a “transformative purpose” behind Article 105, Lahiri incorrectly goes on to assert that that Article 105 (both as originally enacted and after the 42^nd and 44^th constitutional amendments) is an instance of explicit “colonial continuity”. He bases his assertion on the fact that Article 105(3) made the privilege rules of Indian Parliament effectively the same as the British House of Commons. This was done by the original constitutional text through explicit reference to the House of Commons, and after the 44^th amendment, through a slightly circuitous route. According to Lahiri, this explicit reference to the privileges of the British House of Commons creates an explicit colonial continuity”. I argue that this in incorrect. On the contrary, Article 105 radically reverses a significant feature of the colonial rule, i.e., the pre-eminence of British Parliament over the colonial legislatures.

Lahiri’s analysis is incomplete in one crucial respect. He fails to ask: what were the privileges enjoyed by pre-Constitutional legislative bodies in India? Surely, “continuity” in the context of an Indian parliament would make sense only when viewed with predecessor legislative bodies in India. When thus viewed, the transformative character of Article 105 becomes immediately apparent. It was indeed transformative, as originally enacted. A large part of the analysis that follows borrows heavily from an excellent research paper by P.N.Malhan of the Punjab University, published in 1942 in the Indian Journal of Political Science. The paper provides a very good picture of the privileges enjoyed by pre-constitutional colonial legislatures in India, under both the Government of India Acts 1919 and 1935.[1]

The legislative privileges enjoyed by colonial legislatures in the British Commonwealth were radically different from those enjoyed by British Parliament. Indeed, British Parliament (and its constituent houses) was always regarded as a class apart, which derived its sanction and authority, not just by virtue of its status as a “sovereign legislative body”, but also on account of its status as the “High Court of Parliament”. The privileges of British Parliament rest upon its own law called the “lex et consuetudo Parliamenti” (i.e., the law and custom of Parliament) and upon certain specific statutory grants of privilege. In contrast, colonial legislatures have only very limited powers. As Halsbury puts it:

 

“Without express grant, a colonial legislature possesses no power to protect itself against obstruction, interruption, or disturbance of the proceedings by misconduct of any of the members in the course of those proceedings, except such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute. Whatever in a reasonable sense is necessary for those purposes is impliedly granted, whenever any such legislative body is established by competent authority. For those purposes protective and self-defensive powers only and not punitive are necessary. There are Legislative Assemblies in the British Colonies, which have, in the absence of express grant, no power to adjudicate upon, or punish for contempts committed either in their presence or beyond their presence.”[2]

 The position of colonial legislatures in India were no different from other parts of the Commonwealth. In comparison to British Parliament, they possessed woefully restricted privileges. As Malhan put it, the framers of the Government of India Act 1919 “summarily dismissed” the vital problem of privileges of the Legislative Councils, by enacting minimal protections. Despite calls for reform on this front, privileges were not substantially increased in the remaining period of Indian’s colonial history. Incremental increases in privileges were secured by the Legislative Members Exemption Act, 1925. The Government of India 1935 gave a little more importance to the issue, but interestingly, in language strikingly similar to Article 105, established an explicit continuity in privileges of the Chambers of Provincial Legislatures with the privileges that Legislative Councils of the Province used to previously enjoy (note that the continuity is with previous colonial legislatures in India and not British Parliament). Strikingly, it also had transformative potential of a similar nature to Article 105, albeit one that was more limited.[3] Section 71 of the Government of India Act, 1935 provided as follows:

“71.-(1) Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in every Provincial Legislature, and no member of the Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a Chamber of such a Legislature of any report, paper, votes or proceedings.

(2) In other respects the privileges of members of a Chamber of a Provincial Legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the commencement of this Part of this Act enjoyed by members of the Legislative Council of the Province.

(3) Nothing in any existing Indian law, and, notwithstanding anything in the foregoing provisions of this section, nothing in this Act, shall be construed as conferring, or empowering any Legislature to confer, on a Chamber thereof or on both Chambers sitting — together or any committee or officer of the Legislature, the status of a court, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner.”

Conclusion

The upshot of the above is this. It could be argued that one of the features of the colonial project was the pre-eminence of British Parliament over colonial legislatures. One manifestation of this pre-eminence was in the special privileges that British Parliament had that colonial legislatures, including colonial legislatures in India, did not. Article 105 of the Constitution represents a radical break from the past, by conferring the same privileges upon Indian Parliament that were enjoyed by the British Parliament at the time the Constitution came into force. The equation of Indian Parliament to British Parliament is to be viewed as a radical act that is a complete break from a colonial past which subordinated Indian Parliament to British Parliament. It can by no means be regarded as an “explicit constitutional continuity” as Lahiri puts it. In addition, I would argue that the Article 105 was indeed “transformative”, just not in the way that Chandrachud J. meant it. It does not seem to have a discernable “transformative purpose” as Lahiri puts it, at least in terms of social transformation. Without doubt, however, it legislates a substantial transformation in the law on legislative privilege in India.

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[1] Malhan, P. N. “LEGISLATIVE PRIVILEGES IN INDIA.” The Indian Journal of Political Science, vol. 3, no. 3, 1942, pp. 337–359. JSTOR, JSTOR, http://www.jstor.org/stable/42742679

[2] Halsbury’s Laws of England (1936 Edition), Vol. Parliament, Part VII, Para. 697 (as quoted in Malhan, supra)

[3] The transformative potential in Section 71(2) was limited by Section 71(3). The privileges could be increased through legislation but could not confer upon Chambers of Legislature a power to punish or discipline akin to that enjoyed by a court.

Guest Post: Transformation, Continuities, and Gateways to Transformation: Reflections on the Kalpana Mehta judgment

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conservative constitution, Parliamentary Privileges, transformative constitution

(In this Guest Post, through an analysis of the Kalpana Mehta judgment, Karan Lahiri argues that the divide between “conservative” and “transformative” Constitutions/constitutional provisions is simplistic, and misses a crucial, third kind of constitutional clause: that which serves as a “gateway to transformation.” This three-pronged typology is truer to the Constitutional text, structure, history, and philosophy.)

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In May this year, a Constitution Bench of the Supreme Court pronounced its decision in Kalpana Mehta & Ors. v. Union of India & Ors., where it ruled on a question impacting the horizontal separation of powers between legislature and judiciary: namely the extent to which the Supreme Court could rely upon a Parliamentary Standing Committee Report (“PSC Report”). The Court was, essentially, called upon to identify whether, and at what point, such reliance impinged upon legislative privilege. [A post on this blog has provided some background on the issues involved.]

The Kalpana Mehta Judgment

Two questions had been referred to this bench of five judges by an Order of April 05, 2017: –

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

The case involved the licensing and testing of certain vaccines designed to prevent cervical cancer. The Petitioners sought to rely on proceedings before a Parliamentary Standing Committee to establish, among other things, irregularities in clinical trials. The problem before the Court was that if this Report was relied on by one party as evidence of such irregularities, the contents of the Report would become contentious. The other party would dispute them, and the Court would be forced to examine the correctness of the statement made before the Committee as also the correctness of the Report itself. This is a prerogative that the rules of parliamentary privilege reserve for Parliament alone, since such Committees are limbs of Parliament and their Reports constitute advice to the House (as per the Rules of Business). Therefore, reliance by one party would trigger an institutional conflict between legislature and judiciary. This is why the Supreme Court had to clearly define situations where such conflict would not occur, and carve out a set of cases where such reliance on PSC Reports was permissible.

By way of example, let us imagine a situation where a PSC was looking into the felling of trees in Central and South Delhi. A reputed environmentalist deposes before the Committee that 16,000 trees have been cut down illegally. An NGO then files a PIL before the Supreme Court on the strength of this PSC Report, and the statement contained in the Report. The Government appears before the Court and contests the veracity of the statement that 16,000 trees were felled, and produces conflicting evidence that only 420 trees were felled after obtaining all the requisite clearances. This would place the Court in a position where it would be impinging upon the powers of Parliament, because the truth of a statement made before one of its Committees can only be questioned before Parliament itself, with possible consequences (such as proceedings for contempt of the House) following as a result. Similarly, only Parliament can deliberate upon the correctness of the advice provided by a PSC. Drawing a line between the powers of the judiciary and prerogative of Parliament is, therefore, critical, particularly in an age where the Supreme Court is sometimes acting as a fact-finding trial court, arguably going beyond its role and institutional competence as a constitutional court.

In deciding the reference, the Court handed down three plurality opinions – Chief Justice Misra wrote for himself and Justice Khanwilkar; Justice Sikri signed on to Justice Chandrachud’s opinion; and, Justice Ashok Bhushan wrote a separate opinion. As usual, this brings up the question of what the decision ultimately laid down. Based on my reading, the following points emerge: –

• All five judges agreed that a PSC Report can be used as an external aid to statutory interpretation, to throw light on legislative history, on the policy problem (referred to by lawyers as the “mischief“) sought to be addressed by a statute etc. In other words, it could be used to give context to the interpretation of statute that was deliberated upon before the Committee.
• The Court also held that judicial notice can be taken of proceedings in Parliament under Section 57(4) of the Indian Evidence Act, and this can serve as proof of the existence of the report, statements made in Parliament, historical facts etc.
• The CJI and Justice Khanwilkar, on one hand, and Justice Chandrachud and Sikri, on the other, agreed on the point that a PSC Report cannot constitute substantive evidence of underlying facts, as such facts (for instance, facts in respect of the conduct of an individual) would be contentious (triggering the issue of privilege) and, therefore, the Court would have to adjudicate on the basis of other evidence [See Paragraphs 124-127, 138(iii), 138(iv) of the CJI’s opinion; Paragraphs 67, 74, 74(iii) of Justice Chandrachud’s opinion]. On this point, Justice Bhushan was in the minority, as he seemed to hold (at Paragraph 150 of his opinion) that a PSC Report can be one of the pieces of evidence used to prove underlying facts.
• According to Justice Chandrachud (with Justice Sikri), a Parliamentary Standing Committee Report can be used to hold the State and its agencies accountable, particularly in the Court’s PIL jurisdiction. This is because, according to them, there is a functional complementarity between the Courts and the Committees in this regard, However, they were in the minority on this point, as no other judge seems to have a special carve-out in respect of government accountability. [See Paragraph 65-66 in Justice Chandrachud’s opinion]

As I was involved in the litigation, I will refrain from commenting on the outcome of the case, focusing instead on one specific aspect, namely Justice D.Y. Chandrachud’s vision of a “transformative” Constitution, and how he views the moment of creation of our Constitution as a break with the past. I believe this is particularly significant because he is a member of the Constitution Bench that recently heard the correctness of the 2013 decision in Suresh Kumar Koushal v. Naz Foundation (which had upheld the constitutionality of S. 377 IPC), as also part of another bench deciding whether it is constitutional for women of menstruating age to be banned from entering the Sabarimala temple. One side in both cases would be relying on an interpretation of the Constitution as a transformative document: first, to argue that our Constitution marked a break from Victorian morality that demanded criminalization of homosexuality (replacing it with a constitutional morality of choice where every individual could love without fear of the police State); and also, that it left behind an archaic religious morality that permitted menstruating women to be branded as impure, excluding them from an aspect of society (i.e. worship) based on immutable personal traits in a manner categorically similar to “untouchability” (as argued here on this blog).

Questioning the “Transformative Constitution”

I believe, however, that Justice Chandrachud’s emphasis on transformation, as fascinating as it may be, is actually incorrect in this particular case, because the provisions that fell for consideration in the Kalpana Mehta case explicitly establish continuities with the past. The main provision that the Court was considering is Article 105 of the Constitution, which reads:

“105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof

(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

[NOTE: Article 194 is the corresponding provision for State legislatures.]

It would be reasonable to ask why an issue of privilege would arise with respect to a Parliamentary Standing Committee Report, given that nothing in Article 105 seems to explicitly bar judicial scrutiny or consideration of such reports. The answer lies in the continuities explicitly created by Article 105(3), which become apparent when one looks at its drafting history. The following table highlights the amendments that Article 105(3) went through over the years.

Original Provision	Text post 42nd Amendment	Present version post the 44th Amendment
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution.	(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House shall be those of that House and of its members and committees immediately before the coming into force of section 21 of the Constitution (42nd Amendment) Act, 1976, and as may be evolved by such House of Parliament from time to time.	(3) In other respects the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

 

Section 21 of the Constitution (42^nd Amendment) Act never came into force, as the Congress Government was replaced the by the Janata Alliance in 1977 before the provisions could be formally notified. Therefore, the original provision continued until 20.06.1979, when the 44^th Amendment Act brought into force the present version of Article 105(3). The amendment, however, is nothing more than semantics, merely replacing the reference to the “House of Commons of the Parliament of the United Kingdom” with a reference to the privileges “of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”. As the Indian Parliament had made no law defining parliamentary powers, privileges and immunities as on the date that the 44^th Amendment was enacted, the privileges which existed before the coming into force of the 44^th Amendment Act were basically those that were created by the original provision, namely the rules applicable in the British House of Commons as on the date of commencement of the Constitution. [Both the table above, and the history of the provision, are from D.D. Basu, Commentary on the Constitution of India, Vol. 4, Pg. 5034 (8^th edn., LexisNexis Butterworths Wadhwa)].

I would like to highlight four things, at this point, which become evident on reading the table given above: –

• First, our privilege rules are the same as those of the British House of Commons.
• Second, the original Article 105(3) explicitly referred to the British House of Commons.
• Third, the provision place the onus on future legislatures to transform the rules of privilege and break from the traditions of the House of Commons, a duty that our Parliament has, sadly, ignored.
• Finally, the 42^nd Amendment allowed room for a second avenue for homegrown rules of privilege (other than an explicit law) evolved through Parliamentary practice when it referred to rules “as may be evolved by such House of Parliament from time to time.” This was explicitly eviscerated by the 44^th Amendment, once again establishing a continuity, which did not allow for transformation through parliamentary practice.

It is because of these explicit continuities that the questions referred to the Constitution Bench in the Kalpana Mehta case arose in the first place. As is evident from the Order of April 05, 2017, as also the final judgment of the Court, the Respondents, while making their case for exclusion of the Report, referred to precedents from the United Kingdom to formulate the proposition that records of parliamentary proceedings cannot constitute proof of underlying facts, and that records of parliamentary proceedings (including PSC Reports) cannot be relied on in a Court such that the contents of the same become contentious.  Take, for instance, the decision of the Queen’s Bench in Church of Scientology of California v Johnson-Smith, (1972) 1 Q.B. 522 where it was held that “what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”

The purpose here is not to exhaustively examine decisions on privilege from the U.K. Such examination was carried out by the Court in the Kalpana Mehta judgment, and the correctness of their conclusion on this aspect is not something I am examining in this essay. The point here is that such examination was required precisely because of the colonial continuities established by Article 105(3), which ties our rules of privilege to those prevalent in the British House of Commons, and the Court ought to have confined itself to this alone. In other words, the questions before the Court should have been answered in two steps: –

• Step 1: Read Article 105(3).
• Step 2: Refer to parliamentary practice in the British House of Commons based on the explicit text and legislative history of Article 105(3), and whether there is are equivalent principles in the U.K. which would throw light on the circumstances in which a PSC Report could or court not be relied upon.

In fact, the reference to the British House of Commons in Articles 105 and 194 (Article 85 and 169 of the Draft Constitution of 1948) was actually debated in the Constituent Assembly (on 19.05.1949 and 03.06.1949 respectively). H.V. Kamath sought to move an amendment to delete this reference when the provision was debated on 19.05.1949, stating that “it is far better to build our own solid ground, rather than rely on the practices obtaining in other countries.” Naziruddin Ahmad said that “after Independence, we cannot relate our rights to those available to the Members of the House of Commons. Various members (such as Prof. Shibban Lal Saksena and Dr. P.S. Deshmukh) sought inclusion of an Appendix or a Schedule, clearly delineating the privileges to be enjoyed by legislators in India. The response came from Alladi Krishnaswami Ayyar (with whom Dr. Ambedkar concurred). He mentioned that similar provisions exist in Australia and Canada, stressing on the “widest privileges” as exercised by Members of Parliament in England. He also said that a Committee had attempted to catalogue parliamentary privileges, but this effort failed as time was insufficient. Most importantly, he stressed on the fact that this was a “temporary measure” and that “[t]here is nothing to fetter the discretion of the future Parliament of India.” From the debates, therefore, it is starkly evident that, firstly, despite the protests of a few members, the incorporation by reference of the privileges enjoyed by the House of Commons in the U.K. was retained by our Constituent Assembly and, secondly, despite this ostensibly being a temporary measure, no subsequent Parliament has chosen to end the colonial continuities contained in Article 105(3), delineating privilege rules for an Independent India, despite almost 68 years having passed since the Constitution was adopted. Both the Constituent Assembly and Parliament have, therefore, deliberately eschewed transformation in this particular case.

Gateways to Transformation

Let us now look at Justice Chandrachud’s exposition on our transformative Constitution in the Kalpana Mehta judgment. He states: –

71. In finding an answer to the questions in reference, this Court must of necessity travel from a literal and perhaps superficial approach, to an understanding of the essence of what the Constitution seeks to achieve. At one level, our Constitution has overseen the transfer of political power from a colonial regime to a regime under law of a democratic republic. Legitimizing the transfer of political power is one, but only one facet of the Constitution. To focus upon it alone is to miss a significant element of the constitutional vision. That vision is of about achieving a social transformation. This transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state. Liberty, freedom, dignity and autonomy have meaning because it is to the individual to whom the Constitution holds out an assurance of protecting fundamental human rights. The Constitution is about empowerment. The democratic transformation to which it aspires places the individual at the core of the concerns of governance. For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well-being was governed by the acceptance of a destiny wedded to its power. Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose. Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance.

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73. Once we place the fulfilment of individual rights and human freedoms at the forefront of constitutional discourse, the resolution of the present case presents no difficulty. Individuals access courts to remedy injustice. As institutions which are committed to the performance of a duty to facilitate the realisation of human freedom, High Courts as well as this Court are under a bounden obligation to seek and pursue all information on the causes of injustice. Where the work which has been performed by a coordinate constitutional institution – in this case a Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot lead us to hold that the court must act oblivious to the content of the report. [Emphasis supplied]

I fear that this exposition, enlightening as it may be while interpreting other portions of the Constitution, lacks precision when it comes to parliamentary privileges. To be fair, he does not ascribe a transformational purpose to Article 105. What he does, however, is employ a line of reasoning which would potentially render meaningless the text of Article 105. If we parse his reasoning, and break it down, it would go something like this:

• A literal interpretation of the Constitution in this case would be superficial. We must look at the larger transformation purpose of the Constitutional, which empowers individuals.
• One of the ways in which the Constitution empowers individuals is to given then the right to remedy injustice by approaching Courts. [Notice that he does not place any particular fundamental right in conflict with Article 105(3) or the privilege rules of the U.K.]
• When the work of inquiring into the causes of such injustice has been carried out by a coordinate institution, there is no reason why a Court should not rely on the product of such inquiry.

As appealing as this may appear, there are huge problems with this line of reasoning. First, a larger transformational purpose cannot be used to distort the explicit language of Article 105, which clearly establishes a colonial continuity by referring to the privilege rules of the British House of Commons. The statement that “our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice” is in conflict with Article 105(3) itself, which explicitly draws from our colonial past and incorporates by reference the rules of privilege prevalent in Britain prior to the adoption of the Constitution. Second, in this particular case, it is not even clear as to how Justice Chandrachud would read Article 105 differently in light of the Constitution’s transformative purpose. My only guess is that he is driving towards a principle where we ignore certain privilege rules in the U.K. if they conflict with this larger, amorphous idea of a transformative Constitution. Third, the fact that individuals approach Courts to remedy injustice does not really assist us in determining the extent and limits of privilege. To remedy such injustice, a constitutional Court cannot expand its powers and trample upon the prerogatives of Parliament. Putting it another way, a constitutional form of government also protects the individuals from the legislature, executive or judiciary assuming powers beyond those granted by the Constitution. The horizontal separation of powers between judiciary and legislature cannot be disturbed on the reasoning that the individual approaches one forum directly for redress. Finally, the purpose of inquiry by a Parliamentary Standing Committee is to advise Parliament, which then deliberates on ameliorating injustice through legislation. Courts have independent fact-finding powers – especially our Supreme Court which routinely forms SITs and other such inquisitorial committees. The fact that a PSC is inquiring into the same injustice as a constitutional Court does not, in itself, justify the conclusion that “there is no reason why a Court should not rely on the product of such inquiry” because, if there is a conflict with the rules of privilege, that provides an absolute reason to preclude reliance.

I believe that Justice Chandrachud’s idea of transformative Constitution is a powerful one. It will, however, come to be identified as shorthand for judicial overreach if it is not deployed in a consistent and intellectually rigorous manner. Certain provisions in our Constitution, such as Article 17, are pregnant with transformative purpose. Others, especially those derived from the Government of India Act, 1935, establish colonial continuities. There is a third category, like Article 105(3) that provides a gateway to transformation, by placing a responsibility upon Parliament to lay down new rules for an independent India (in this case, a charter of privileges derived from post-Independent experimentation), preserving colonial continuities as a temporary measure until Parliament rises to the occasion. Our courts should, perhaps, acknowledge the patchwork nature of our Constitution in interpreting it, to preserve its truest meaning.

Round-Up: Constitution Bench Judgments on Assisted Dying and Parliamentary Standing Committee Reports

Tags

article 21, euthanasia, Parliamentary Privileges, Right to Die, standing committee reports, transformative constitution

Ever since the present Chief Justice assumed office, he has been presiding over what is effectively a permanent Constitution Bench, that has been hearing – and is scheduled to hear – a total of thirteen cases. In the first half of the year, the Bench handed down two judgments that have constitutional implications. The first was Common Cause v Union of India (now better known as the “passive euthanasia” case) and the second one was Kalpana Mehta v Union of India (the “parliamentary standing committees” case).

I do not think that either of these cases require a granular examination; the questions before the Court were broad, and were answered in broad terms. I shall briefly summarise the holdings, but before I do so, I think it is important to note, in passing, that Common Cause clocks in at 538 pages, and Kalpana Mehta at 338 pages. The length of both these judgments could be significantly shortened if the Chief Justice resisted the temptation of spending reams of pages philosophising about life and death in the first case, and about democracy in the second case. They could also be significantly shortened if the judges – none of whom dissented in either case – resisted the temptation of writing 100+-page concurring opinions (Common Cause has four separate opinions, Kalpana Mehta three).

For example, in Common Cause, Justice A.K.. Sikri wrote:

“My purpose is not to add my ink to the erudite opinion expressed in otherwise eloquent opinions penned by my learned brothers. At the same time, having regard to the importance of the issue involved, I am provoked to express my own few thoughts, in my own way, which I express hereinafter.” (paragraph 8)

It is respectfully submitted that the eminently laudable purpose of not adding ink is best served by, well, not adding ink. The provocation to express one’s own thoughts in one’s own way is an understandable one, but judges are, after all, meant to be made of stuff stern enough to recognise and avoid such provocations. This is not to say that the concurrences shouldn’t exist – for example, in Common Cause, Chandrachud J. has a significant disagreement with the other judges on the issue of causation, a disagreement that can be expressed only through an opinion that concurs in the result, but sets out its own separate reasoning. That apart, however, in both these cases, the five judges agree on almost everything. In such circumstances, a single opinion of the Court would make everyone’s life much easier.

In Common Cause, the Constitution Bench unanimously held that passive euthanasia was legal, grounded in the “right to die with dignity” under Article 21 of the Constitution, and ancillary concepts, such as the freedom of choice (to refuse medical treatment), personal autonomy, bodily integrity. The Court only legalised passive euthanasia (that is, to put it simply, the removal of life-supporting machinery from a terminally ill patient), not active euthanasia (mercy killing) or suicide. Following the Vishaka model, the Chief Justice laid down detailed guidelines (which immediately proved controversial) to facilitate the right through the mechanism of “Advance Directives”, and to prevent abuse.

There are perhaps two interesting jurisprudential points that emerge from the judgment. Four of the five judges grounded the distinction between “active” and “passive” euthanasia in the philosophical distinction between acts and omissions:

In case when the death of a patient occurs due to removal of life-supporting measures, the patient dies due to an underlying fatal disease without any intervening act on the part of the doctor or medical practitioner, whereas in the cases coming within the purview of active euthanasia, for example, when the patient ingests lethal medication, he is killed by that medication. (Opinion of the Chief Justice, para 46)

Justice Chandrachud – in my view, correctly – recognised the incoherence of this distinction, especially in the context of something like euthanasia. As he observed:

Against the background of the duty to care, the moral and legal status of not saving a life due to failure to provide treatment, can be the same as actively taking that life.A doctor who knowingly allows a patient who could be saved to bleed to death might be accused of murder and medical negligence. The nature of the doctor-patient relationship which is founded on the doctor’s duty of care towards the patient necessitates that omissions on the doctor’s part will also be penalised. When doctors take off life support, they can foresee that death will be the outcome even though the timing of the death cannot be determined. Thus, what must be deemed to be morally and legally important must not be the emotionally appealing distinction between omission and commission but the justifiability or otherwise of the clinical outcome. Indeed, the distinction between omission and commission may be of little value in some healthcare settings. (paragraph 40)

I’m not quite sure how this split in the approaches towards the act/omission distinction will play out in future cases, but – for obviously reasons – it seems to me that Justice Chandrachud’s approach – which detaches justification from the analytical classification of an event into an act or an omission – is far sounder (later on in his judgment, he – again, correctly in my view – recognises that the distinction is nevertheless maintained in the penal law, and therefore, active euthanasia can only be legalised by the legislature (para 93); and then, still later – this time, wrongly, in my view – links it to mens rea (para 98)).

The second interesting feature that I want to highlight is a little more abstract. When you pare it down to essentials, Common Cause was about a right of refusal. At one level, it was the right to refuse life-prolonging medical treatment. At a second level, however, it was also a right to refuse unwarranted technological intervention into one’s body, or – to put it in another words – the right to refuse being conscripted into a technological system, whatever its beneficial purpose. All the judges recognised this – whether it was the Chief Justice with his striking question about whether an individual should be made “a guinea pig for some kind of experiment”, or Justice Chandrachud’s repeated use of the word “intervention”.

When you combine this with the judgment’s invocation of privacy and autonomy, you get the germ of a concept that I’d like to call “technological self-determination.” In a piece written soon after the judgment, I attempted a definition:

Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Let us call this the principle of technological self-determination: or the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.

In Common Cause, the stakes were relatively low; however, in the years to come, as technology becomes ever more ubiquitous and ever more intrusive, the idea of technological self-determination will become crucial. One does not even need to look to the future: technological self-determination is a key aspect of the Aadhaar constitutional challenge, presently awaiting judgment. Aadhaar is a complex technological system that operates at the stages of collection, storage and use of personal data; mandatory Aadhaar authorises the government to set the terms by which individuals must engage with this system.

Technological self-determination may or may not feature in the Aadhaar judgment, but it has, at least, made an incipient appearance in Common Cause, and gives all of us something to build on for the future.

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The Constitution Bench’s second judgment dealt with the use of Parliamentary Standing Committee reports in Court. The reference arose out of a PIL, which is unsurprising: it is primarily in PILs – where broad and far-reaching (and often continuing) remedies are sought, and the Court takes on the role of an administrator – that the findings of Parliamentary Standing Committees become particularly useful.

In a forthcoming blog post, Karan Lahiri will critique the judgment in some detail; reading it, however, was a somewhat strange experience, because both sides appeared to agree on a lot of issues. Both sides agreed that the credibility of a member of Parliament could not be impugned in Court, through the production of a PSC, since the doctrine of parliamentary privileges and the principle of the separation of powers militated against it. Both sides agreed that a Parliamentary Standing Committee could be used in an interpretive enquiry – that is, while interpreting ambiguous statutory provisions, as a part of the legislative history and record. The Court accepted both these straightforward propositions. The Court also held that – in terms of the law of Evidence – a PSC could be treated as a “fact.” Broadly, this means that the existence of the PSC and the existence of its contents (including, presumably, which Minister said what) are factual, and can be relied upon in Court without dispute. However, the contents themselves cannot be relied upon. For example, if a PSC states that “x was the situation prevailing at y time”, then the fact that the PSC says can be cited in Court (say, to interpret a law, or for some other purpose), but the question of whether x was actually the situation at the time has to be demonstrated independently, and using the rules of evidence:

From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same. (Opinion of the Chief Justice, para 117)

And:

“… whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.” (Opinion of the Chief Justice, para 124)

There is some doubt on this last point, as it appears that Justice Chandrachud and Sikri’s joint opinion envisioned a slightly more prominent role for PSCs, where it factual determinations could be impacted by virtue of being part of a PSC (this is my reading, and I am open to correction on this). However, even if that was the case, it would put them in a minority: on my reading, the majority holding in Kalpana Mehta is what I extracted in the paragraph above.

Doctrinally, it is interesting to note that, in the course of extensive discussions by the three separate opinions on issues of parliamentary privileges, democracy, and the separation of powers, it was only Justice Chandrachud, in the joint opinion, who addressed the elephant in the room: that with PIL becoming such a dominant part of the Court’s docket – which includes, inter alia, the Supreme Court often assuming the role of the first and final trier of fact – the application of separation of powers and parliamentary privileges necessarily needs to change, just to maintain internal consistency. In cases where the Court issues a continuing mandamus and monitors government action on a hearing-by-hearing basis (such cases are legion by now across India), the entire approach that was founded on the Executive being the primary implementing authority, needs to be modified. As the joint opinion observed:

“In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles 19 and 21).

Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the parliamentary committee and the adjudication by the court….

… The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.” (Joint Opinion authored by Chandrachud J., paras 65 – 66)

I do not know if this addresses the problem to the fullest extent – to be fair, I don’t know if the problem can be addressed within existing legal vocabulary, which simply doesn’t envisage the Court as permanent administrator – but it does, at least, acknowledge the misfit, and make a start towards addressing it. Justice Chandrachud’s invocation of the “transformative Constitution” at the end of the Opinion, as an anchoring principle, is interesting, and I shall examine it in some detail in a subsequent post.

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(This ends the Round-Up Series, that dealt with important constitutional pronouncements in the first half of 2018.)