Category Archives: Equality

The Aadhaar/PAN Judgment

In a judgment delivered today, the Supreme Court upheld the constitutional validity of S. 139AA of the Income Tax Act, which makes quoting one’s Aadhaar number mandatory while filing income tax returns. The Court also stayed S. 139AA(2), which provided for the cancellation of PAN cards for failure to comply. In view of the multiple Aadhaar cases pending before the Supreme Court, it is important to clarify what precisely the Court decided, what it didn’t decide, and what it left open (a summary of the arguments can be read here (Part I), here (Part II), and here (Part III)).

What the Court didn’t decide

Recall that on August 11, 2015, a three judge bench of the Supreme Court had referred the constitutional challenge to Aadhaar (then an executive scheme) to a larger bench, on the basis that the constitutional status of the right to privacy was uncertain, and needed to be authoritatively decided. That larger bench has not yet been constituted. Consequently, at the beginning of the Aadhaar/PAN arguments, the Court wanted to “tag” this case to the pending challenge before the (still-to-be-constituted) larger bench. The Petitioners then informed the Court that they would make their arguments without relying on the right to privacy. The Court agreed to this.

During the course of arguments, Mr Shyam Divan advanced arguments based on the right to bodily integrity, dignity, and informational self-determination, under Article 21 of the Constitution. In its judgment, however, the Court held that all these arguments were facets of the right to privacy, and could not be decided here. Consequently – and the Court was very clear about this – no argument under Article 21 would be decided by it, whether it was framed as an argument from dignity, or from informational self-determination. This means that the constitutional validity of Aadhaar on the ground of Article 21 has not been decided one way or another by the Court (the Court has not even expressed an opinion), and all arguments on that count remain open.

That said, it needs to be pointed out that the Court’s lumping of all Article 21 arguments into an omnibus “right to privacy” is far from satisfactory. For example, in paragraph 71 of its judgment, the Court cites an American Supreme Court judgment (invoked by the Respondents) to hold that the right to informational self-determination is an aspect of the right to privacy, and so need not be considered by it. The Court does not cite – or engage with – the material placed on record by the Petitioners which specifically demonstrated that the right to informational self-determination was different from the right to privacy, in terms of its origins (in German constitutionalism) and development. As I shall show subsequently, this is a problem that afflicts much of the Court’s opinion.

What the Court did Decide: Process

Two arguments were made before the Court on the nature of the law itself. The first was that the law could not have been passed in the teeth of Supreme Court orders specifying that Aadhaar could not be made mandatory, without taking away the basis of those orders (which S. 139AA didn’t do – see Part I for details). To this, the Court said that those earlier orders had been passed when Aadhaar was still only an executive scheme, and it was open to the legislature to pass a law making Aadhaar compulsory. The Court’s decision here would imply that in future challenges to other laws making Aadhaar mandatory, its prior orders would not be an impediment; however, insofar as Aadhaar is sought to be made mandatory for something through an executive order without a law, those earlier orders would continue to hold the field (paragraph 94).

It was also argued that the process of enrolling and obtaining an Aadhaar number, as set out under the Aadhaar Act, was a voluntary process. S. 139AA of the Income Tax Act, however, made quoting an Aadhaar number for filing IT returns mandatory, and thus indirectly forced taxpayers to enrol for an Aadhaar number, even though the Aadhaar Act explicitly stated that Aadhaar was an entitlement, and not an obligation. To this, the Court stated that the Income Tax Act and the Aadhaar Act operated in different fields, and that the Aadhaar Act was not the “mother Act.” (paragraph 92) I do not propose to deal with this reasoning in detail, since the argument has been set out at some length in Part I (link above), and readers can make up their own minds whether the Court’s answer was satisfactory.

What the Court did Decide: Article 14

It was argued by the Petitioners that S. 139AA contravened Article 14 in two ways: first, by drawing a distinction between individuals and non-individuals, and requiring the former to acquire an Aadhaar number. If – as the State claimed – its goal was to eliminate duplicate PANs and black money, then why were individuals only being singled out through the means of compulsory Aadhaar? The Court responded by stating that it was the State’s prerogative to deal with problems such as duplicate PANs and black money in an incremental or piecemeal fashion, and to make a start with targeting individuals.

It was also argued, however, that the introduction of Aadhaar would not actually solve the problem of duplicate PANs, because there was evidence to show the existence of multiple Aadhaar numbers themselves, as well as the well-documented ability to fake both biometric details and iris scans. Consequently, there was no “rational nexus” under Article 14.

It is at this stage that the judgment becomes highly problematic, because the Court appears to simply repeat the assertions of the State, without adverting to or engaging with the objections raised by the Petitioners. For example:

Respondents have argued that Aadhaar will ensure that there is no duplication of identity as bio-metric will not allow that and, therefore, it may check the growth of shell companies as well.” (paragraph 99)

“By making use of the technology, a method is sought to be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given the nomenclature ‘unique identity’. (paragraph 118)

“However, for various reasons including corruption, actual benefit does not reach those who are supposed to receive such benefits. One of the main reasons is failure to identify these persons for lack of means by which identity could be established of such genuine needy class. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country has gone to record to say that out of one rupee spent by the Government for welfare of the downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/Aadhaar much of the malaise in this field can be taken care of.” (para 118)

“To the same effect is the recommendation of the Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses the problem of money-laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go a long way to check and minimise the said malaise.” (paragraph 118(ii))

“Thirdly, Aadhaar or UID, which has come to be known as most advanced and sophisticated infrastructure, may facilitate law enforcement agencies to take care of problem of terrorism to some extent and may also be helpful in checking the crime and also help investigating agencies in cracking the crimes. No doubt, going by aforesaid, and may be some other similarly valid considerations, it is the intention of the Government to give phillip (sic) to Aadhaar movement and encourage the people of this country to enroll themselves under the Aadhaar scheme.” (paragraph 119)

“As of today, that is the only method available i.e. by seeding of existing PAN with Aadhaar. It is perceived as the best method, and the only robust method of de-duplication of PAN database. It is claimed by the respondents that the instance of duplicate Aadhaar is almost non-existent. It is also claimed that seeding of PAN with Aadhaar may contribute to widening of the tax case as well, by checking the tax evasions and bringing in to tax hold those persons who are liable to pay tax but deliberately avoid doing so.” (para 119)

In each of these paragraphs, the Court effectively echoes the State’s claim, assumes it to be true, and does not engage with the detailed objections raised by the Petitioners (see Parts I and III). All the talking points are here: how biometric identification is the “best method”, how unique identity is actually “unique”, how terrorism will be tackled through Aadhaar, how “ghosts” will be removed, and so on (note that every one of these points were opposed in court). It is telling that, at various points, the Court even uses language such as “it is claimed” and “Respondents have claimed that”, but doesn’t even trouble to subject those claims to any kind of independent scrutiny.

India has an adverserial legal system. An adverserial system presumes the existence of opposing parties, who marshall their respective facts and evidence into legal arguments, and place it before the Court, which acts as a neutral umpire, adjudicating the rival claims. When there are competing claims, especially competing factual claims, the Court decides by applying legal techniques such as burdens and standards of proof, or taking the assistance of amici curiae who are domain experts. What the Court is not supposed to do is to act like a rubber stamp, simply accepting the State’s assertions as true without engaging with the counter-arguments, or subjecting them to independent scrutiny. However, “rubber stamp” is the only way to describe the Court’s recitation of one side’s arguments, and sidelining (to the point of ignoring) the other.

What the Court did not decide: the strange case of the vanishing Article 19(1)(g)

The Court records Mr Datar’s argument that the invalidation of PAN cards affects an individual’s right to do business, and violates Article 19(1)(g) of the Constitution. The Court also records – and agrees – with his argument that for an infringement of Article 19(1)(g) to be justified under Article 19(6), the test of proportionality is to be applied. However, after recording this, and after waxing eloquent about the wonders of biometric identification, the Court returns no finding on the issue of proportionality. The discussion on Article 19(1)(g) begins at paragraph 106, and ends at paragraph 124, where the Court notes:

“Therefore, it cannot be denied that there has to be some provision stating the consequences for not complying with the requirements of Section 139AA of the Act, more particularly when these requirements are found as not violative of Articles 14 and 19 (of course, eschewing the discussion on Article 21 herein for the reasons already given). If Aadhar number is not given, the aforesaid exercise may not be possible.”

However, there is absolutely no analysis on whether making Aadhaar compulsory, on pain of cancellation of PAN cards, is proportionate in relation to the stated goal of deduplicaton. This is a crucial omission, because the proportionality test is a detailed and complex four-part test, which requires the State to show that its proposed act infringes upon a right only to the minimal extent necessary to achieve the goal, as well as an overall balancing exercise. It is here that a number of arguments would have become extremely salient, including statistics on the percentage of duplicate PANs (0.4%) which the Court dismisses at an earlier part of the judgment, the existence of multiple Aadhaars (which the Court never engages with), and so on – all of this would have been extremely important in determining whether S. 139AA was a proportionate interference with the right under Article 19(1)(g). (Notably, the only response of the Attorney-General of India to the 19(1)(g) argument was “who cares about Article 19(1)(g) these days?)

The omission is all the more glaring because the proportionality test was introduced by the author of this judgment – Justice Sikri himself – in his judgment in the NEET case. It is truly extraordinary that a judge who introduces a doctrine in one judgment, writing for a Constitution Bench, simply refuses to apply it a few months later when sitting as part of a two-judge bench!

What is even more problematic is the absence of a finding on proportionality. This is reminiscent of the Supreme Court’s judgment in Koushal vs Naz, where the Court’s chosen method of dealing with inconvenient arguments is to set out the submissions, set out the position of law, and then just move on to something else: if you close your eyes and chant “na na na”, long enough, maybe it will go away. A correct application of the four-part proportionality test would have required rigorous scrutiny of the State’s claims on behalf of Aadhaar – but if there is one thing that defines this judgment, it is a complete and utter unwillingness to hold the State to account.

Relief

There is a significant amount of confusion with respect to the relief that the Court does grant – a “partial stay” of S. 139AA(2) (cancellation of PAN) until the main Aadhaar case is decided. The Court states:

“Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.”

One reading of this passage is that it remains mandatory to provide an Aadhaar number while filing IT returns (after July 1), but if one doesn’t already have an Aadhaar Card, then one’s PAN will not be canceled for failure to comply; however, one’s tax returns shall be invalid, and therefore subject to other penal provisions for not paying tax. On another interpretation, however, S. 139AA(2) provides the punishment for failure to comply with S. 139AA (refusal to provide Aadhaar number for IT returns). The staying of S. 139AA(2) (for those who have no Aadhaar number yet) necessarily implies that there is no penal consequence to follow from violating S. 139AA itself. Over the course of the day, I have heard both views being defended by competent lawyers, implying that at the very least, there is some amount of confusion here.

Conclusion

In its judgment today, the Supreme Court leaves the most crucial issues (Article 21) undecided, and footballs them to the unicorn Constitution Bench that is still to sit after a year and nine months after referral. The Court’s analysis of Article 14 is sketchy, defined by its uncritical reliance upon the State’s claims about Aadhaar (claims that were disputed in Court, and are disputed on a daily basis in the public sphere), and its analysis of Article 19(1)(g) is non-existent.

In a matter where the stakes are this high, this is just not good enough.

(Disclosure: The author assisted the Petitioners in the present case)

 

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Filed under Article 14, Article 21 and the Right to Life, Bodily Integrity, Equality, Freedom of Trade

Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

On the 11th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

  • Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.

Conclusion

Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.

 

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Filed under Article 14, Article 15 (general), Equality, Non-discrimination, Personal Law

The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer

Tomorrow, a Constitution Bench of the Supreme Court will commence hearings in the constitutional challenge to Section 6A of the Citizenship Act. The case comes up for hearing as the result of a referral order under Article 145(3) of the Constitution, passed by a bench of two judges in Assam Sanmilita Mahasangha vs Union of Indiawho framed thirteen questions of law to be decided by a Constitution Bench.

Tomorrow’s hearing may be a brief one. The Bench has indicated that it is unlikely to hear the matter unless all counsel commit to finishing within seven working days. Given the scale and complexity of some of the questions (as we shall see), as well as the number of intervention applications that were allowed after the referral, this is unlikely. In light of the fact, however, that even if it is not heard at the present, it is likely to be taken up soon after the vacations (in July or August), I shall provide a brief primer to the case.

History

Migration has been a source of social and political conflict in the border-state of Assam at least the middle of the 19th century. During the framing of the citizenship provisions of the Constitution during the Constituent Assembly Debates, the representative from Assam highlighted issues pertaining to large-scale migration from Bengal, its impact upon the indigenous population and culture, and asked for specific constitutional provisions to deal with the issue. Ultimately, however, the Constitution contained only skeletal provisions on citizenship – in particular, to deal with the Partition – and left the issue to be addressed by Parliament. Article 5 of the Constitution incorporated the broad jus soli principle of citizenship, stipulating that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born here, if either of their parents were born here, or who had been ordinarily resident for not less than five years. Articles 6 and 7 were the Partition provisions, dealing with migrations to and from Pakistan, and fixing 19th July 1948 as the “cut-off date” for citizenship. And to clarify that these provisions were only dealing with the special situation created by the Partition, Article 11 contained an overriding clause authorising Parliament to legislate for citizenship. Parliament did so in 1955, with the Citizenship Act, and a special law for Assam titled the Immigrants (Expulsion from Assam) Act of 1950.

To regulate the entry of migrants into India, the colonial government had passed the Foreigners Act of 1946, which continued even after Independence. This Act conferred powers upon the government to prohibit entry of foreigners, among other things. In 1964, acting under the authority of the Act, the Government promulgated the Foreigners Tribunal Order. This Order authorised the Government to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Consequently, the Constitution of India, the Citizenship Act of 1955, the Foreigners Act of 1946, and the Foreigners Tribunal Order of 1964 comprised a comprehensive statutory regime dealing with both substantive and procedural questions of citizenship and migration.

Meanwhile, issues of migration continued to cause conflict in Assam. Matters came to a head during the run-up to the Bangladesh War of 1971, where in fact a massive influx of refugees into India from (what was then) East Pakistan was cited as one of the reasons for India’s involvement in the war. The issues did not cease even after 1971, however, because it was perceived that many of “illegal immigrants” were being put on voting rolls by political parties attempting to create faithful constituencies. Ultimately, this led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. The movement was sometimes punctuated by violence, including the Nellie massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord between the Government of India, and the leaders of the movement.

The Assam Accord, S. 6A of the Citizenship Act, and the IMDT Act 

The Assam Accord was effectively a political compromise between the government and the leaders of the Assam Agitation. While providing for two separate cut-off dates for regularisation of migrants (an issue we shall discuss in a moment), the Accord also contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places.”

Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.

Section 6A, therefore, was a special citizenship law for Assam, hammered out as a result of a political settlement. Meanwhile, two years before the Accord and S. 6A, the Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, and so on.

Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of India, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants.

The Judgment in Sarbananda Sonowal vs Union of India

The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a flood of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional.

After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. The State’s attempt to get around this through passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the Court in Sarbananda Sonowal (II)

The Referral Order

It is in this context that the challenge to Section 6A of the Citizenship Act came before the Supreme Court. In his referral order, Justice Nariman framed thirteen questions of law:

“(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

As we can see, these referral questions raise a host of complex issues about the interaction between the State’s sovereign power of conferring citizenship, the right to equal treatment, and the right to preservation of culture and identity; the interaction between rule of law and citizenship provisions arising as a result of political settlements; and the impact of a possible judgment of unconstitutionality upon vested rights that have stood for decades.

The Aftermath

After the referral order, some further petitions were filed, that were tagged with the main case. These included a petition asking that Section 3 of the Citizenship Act be read in a manner that children of illegal immigrants, when it came to Assam, ought not to be granted citizenship, on the basis that Section 6A was a comprehensive provision dealing with the issue of migration and citizenship in Assam. Petitions were also filed challenging the Foreigners (Amendment) Order of 2015 and the Passport (Entry into India) Amendment Rules, 2015, which stated that “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014” would be granted exemption from application of the Foreigners Act and the Passport Rules. It is unclear whether the Court will take up these additional issues for hearing as well.

Either way, we shall know more about the progress of this case tomorrow.

(Disclosure: The writer is assisting the Respondents (AASU) in defending the constitutionality of S. 6A)

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Filed under Citizenship, Cultural Rights, Equality, External Aggression (Article 355), Migration, Minority Rights

The Constitutional Challenge to Aadhaar/PAN – III: The Petitioners’ Rejoinder and the Issues before the Court

In the last two posts, we examined the case of the Petitioners and that of the Union of India before the Supreme Court in the constitutional challenge to S. 139AA of the IT Act. In this post, we shall conclude by discussing the Petitioners’ rejoinder, and outlining the issues that the Court must adjudicate.

Mr Shyam Divan’s Rejoinder

On Article 14 and the Collision Between the Aadhaar Act and S. 139AA

Mr Divan argued that the entire case rested upon the Attorney-General’s argument that S. 7 of the Aadhaar Act was virtually mandatory – an argument, he stated, he had heard for the first time during these proceedings. Mr Divan contended that the only way in which the Attorney-General had managed to reconcile the Aadhaar Act and S. 139AA was by arguing that S. 7 was mandatory. If that argument failed, then the entire edifice would crumble, and S. 139AA would have to be struck down.

Mr Divan argued that the entire scheme of the Aadhaar Act made it clear that it was voluntary. This was evident from the Statement of Objects and Reasons, from Section 3, which stipulated that “every resident shall be entitled” to an Aadhaar number. It was also evident from S. 3(2), which required the enrolling agency to inform the individual about the manner in which the information would be used and S. 8(2)(a), which required requesting entities to “obtain consent” . And S.7 only permitted the Government to make Aadhaar mandatory as a condition for receiving subsidies which were financed out of the Consolidated Fund of India. Mr Divan argued that the Attorney-General’s reliance on S. 57 was incorrect, because S. 57 clearly stated that it was subject to the rest of the Aadhaar Act. No coercive measures were contemplated by the Act. Furthermore, the voluntariness of Aadhaar was also evident from the enrolling form, which specified consent; from the UIDAI’s own website, which used the phrases “entitled to voluntarily obtain an Aadhaar number“, and “any person may choose to use Aadhaar“; and from the UIDAI’s advertisements.

Aadhaar, therefore, was a voluntary scheme. What flowed from this, according to Mr Divan, was that a legislative scheme which divided people into two categories – those who choose to have an Aadhaar, and those who don’t – and then burdened the latter category, was discriminatory on the face of it. And this was precisely what S. 139AA did. By dividing taxpayers into those who had freely chosen to get an Aadhaar number, and those who hadn’t, and by forcibly requiring the latter to get an Aadhaar, S. 139AA violated Article 14 because its very objective was discriminatory. Mr Divan argued that the petition should succeed on this count alone.

Compelled Speech 

Mr Divan clarified that his point about compelled speech was simply that, by parting with her biometric details and iris scan – the most personal of all information about oneself – the individual was being compelled to “speak” – and that too, not to the State, but to private enrolling agencies. Mr Divan conceded that there might be different considerations if the State was doing the collecting itself; but how, he asked, could the State compel the individual to “speak” to another individual with whom they did not wish to have any interaction? Reading out the list of private enrollers, Mr Divan argued that the entire architecture of Aadhaar – which required me to go and provide my most sensitive information not to the State, but to “Pankaj Shah of Bits and Bytes Co.” violated Article 19(1)(a).

Bodily Integrity, Compelling State Interest, Narrow Tailoring 

The Union of India’s entire argument – Mr Divan stated – essentially boiled down to “what’s the big deal about this? Other laws require you to part with personal information too.” To this, he responded that there could be laws which infringed bodily integrity in order to protect and preserve life: this is why there were laws mandating helmets and seatbelts. Likewise, there could be laws stipulating narrowly-tailored exceptions to the right, in service of a compelling State interest, such as passports (where an urgent need might arise to identify a person in case of an accident abroad). That, however, was a far cry from a centralised database, which – according to the Union’s own affidavit – involved seeding of information. This was also what distinguished Aadhaar from a provision such as S. 32A of the Registration Act. The Registration Act required you to give your fingerprints, but that was for your benefit and was only on the document; it did not go into a centralised database, with all the accompanying possibilities of misuse and data theft. Similarly, the Census Act accorded a very high degree of protection to census information: inspection of census registered, for instance, was prohibited. What this showed was that when the coercive power of the State is used to invade bodily integrity, there must be a consequently high degree of protection – something which Aadhaar, with the possibility of seeding, did not have.

Furthermore, Mr Divan argued, the State had failed to make out a compelling interest. The argument about “giving people an identity” was flawed, because 99.97% of Aadhaar applicants already had pre-existing identity documents. The logic of duplication was also flawed, because official information showed the presence of 1,69,000 duplicate Aadhaar numbers. Consequently, the large-sale infringement of bodily integrity in this case could not be sustained by the goal the State was trying to achieve.

Competence and Deference 

Mr Divan reiterated his argument that under the constitutional scheme, there was an implied limitation upon the State’s power to legislate when it came to the human body: only narrowly-tailored infringements, in service of a compelling interest, were permitted. Wholesale taking of biometric details and iris scans, and storing them in a centralised database for the purposes of seeding was neither narrowly-tailored, nor in service of a compelling interest. Mr Divan also pointed  out that this case had raised serious questions pertaining to the violation of Articles 14, 19, and 21 of the Constitution. Consequently, the Court ought not to follow its usual policy in dealing with “fiscal statutes”, and defer to legislative wisdom; although 139AA was a tax amendment, its nature was anything but purely fiscal.

Mr Divan concluded by arguing that the Union’s three-pronged case – that there was no right to privacy, that fingerprinting and iris scans were no more intrusive than a photograph, and that Aadhaar was mandatory – if accepted, would overturn the entire relationship between the individual and the State, concentrating great power in the hands of the latter at the expense of the former. That would result in a tremendous compromise of civil liberties. He would urge the Court to strike down S. 139AA.

Mr Datar’s Rejoinder

Legislative Overruling of Judicial Orders

Mr Datar argued that before the Supreme Court, the Union of India had always reiterated that Aadhaar was voluntary. On 11th August 2015, and then again on 15th October 2015, the Supreme Court itself had stated that Aadhaar could not be made mandatory. Now, it was open to Parliament to legislate in a way that took away the basis of these orders. Parliament, for instance, could simply stipulate, in a law, that henceforth, every individual was obligated to obtain an Aadhaar Number. However, Parliament had not done that. Parliament had simply enacted S. 139AA, which made it mandatory to quote an Aadhaar number while filing Income Tax returns. That did not amount to taking away the basis of the Supreme Court orders. Mr Datar took the example of a case in Bangalore, where notwithstanding building regulations prohibiting a height of more than 80m, a person had built up to 100m. The case was taken to Court, and he lost. However, before his building could be demolished, the Regulation was changed to make the legal height 110m, and applicable retrospectively, from the time that construction had commenced. That, argued Mr Datar, was an instance of how the basis of a judgment could be altered, and that was the only way known to law in which the Parliament or Executive could overcome a contrary court order. Similarly, in the Supreme Court’s recent judgment banning liquor within a specified distance from highways, some states had responded by denotifying their highways, and turning them into ordinary roads. That was permissible, because it removed the basis of the Court’s judgment; however, those states could not simply have said, “notwithstanding the Supreme Court judgment, alcohol will continue to be sold in these shops.” S. 139AA effectively amounted to state action of the latter kind.

Justice Sikri pointed out that what was unique about this case was that the Court’s earlier orders had been passed when Aadhaar was merely an executive scheme, and no law existed. So could it be said that the orders even applied to a law in the first place? Mr Datar responded by saying that in view of Ram Jawaya Kapoor’s Case, the executive and legislative powers of the State were co-extensive. Consequently, whether the original orders applied to an executive scheme, or to a law, the point remained that they could only be overcome through the specific mechanism outlined above. Justice Sikri and Mr Datar agreed that the Court was dealing with this kind of a situation for the first time in its history, and would have to lay down the law on the basis of first principles. Justice Sikri then asked what the “basis” of the earlier Court orders was, that the Parliament could have legislated to take away. Mr Datar responded that the basis was that since the validity of Aadhaar was yet to be tested on the constitutional anvil, in the meantime it could not be made mandatory for anything but a specified number of services. Consequently, the only way of removing this basis was to pass an Act that stated “Parliament may make Aadhaar mandatory…” Mr Arghya Sengupta interjected to state that S. 7 of the Aadhaar Act did this already. Mr. Datar replied that S. 7 did nothing of the sort.

Legislative Dichotomy

Mr Datar then pointed out that S. 139AA of the Aadhaar Act did not contain a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force…). In the absence of a non-obstante clause, there was a clear collision – or a dichotomy – between the Aadhaar Act and S. 139AA, a dichotomy that could be resolved only by striking down S. 139AA. Once Parliament had passed a law which made Aadhaar a right – it could not then pass a contrary law that made Aadhaar its jural opposite –  a duty without a non-obstante clause. Mr Datar read out numerous parliamentary statements – including one by Mr Jaitley – to demonstrate that at its core, Aadhaar was meant to be voluntary, and also pointed to the utter lack of debate in Parliament before passing S. 139AA.

Article 14

Mr Datar argued once again that the State had entirely failed to make out a rational nexus between making Aadhaar compulsory for individual taxpayers, and its stated goal(s) of preventing duplication, preventing black money, and preventing terrorism. He pointed out that only 0.4% of PAN Cards had been found to be duplicate, and that these figures from 2006. In response to Mr Sengupta’s interjection that this was only 0.4% of a very small sample, Mr Datar responded that that was exactly the point of statistical sampling. He observed there was no data after 2006, and asked on what basis the State had decided to take such a huge step – of mandatory Aadhaar – without analysing data, or sending the matter for consideration by a Parliamentary committee. The reason for the discrepancy between the number of PAN Cards and the number of taxpayers was simply that, after 1998, PAN began to be used for a wide number of transactions that had nothing to do with tax. Consequently, the Union had failed to discharge its burden under Article 14 that there existed a rational nexus between making individuals quote their Aadhaar numbers while filing tax returns, and checking duplication, tax evasion, or black money.

Mr Datar also addressed the Attorney-General’s arguments under FATCA, arguing that FATCA had nothing to do with Aadhaar numbers at all. Mr Arghya Sengupta interjected, saying that FATCA required handing over PAN numbers to US authorities, and that it would be embarrassing if duplicate PANs were handed over. Mr Datar pointed out that this had nothing to do with rational nexus under Article 14.

Article 19(1)(g) 

Mr Datar argued that the consequences of not having a PAN Card effectively locked an individual out of a number of economic transactions that were a lifeline (especially) for small traders and entrepreneurs. Apart from crores of individual taxpayers, it would be this class that would be affected the most: their entire economic life would grind to a halt. Consequently, for those who did not wish to get an Aadhaar number, S. 139AA was a serious infringement of their right to carry on trade and business under Article 19(1)9(g).

Now, if a law violated Article 19(1)(g), it could only be justified under Article 19(6): i.e., if it was a reasonable restriction in the interests of the general public. The correct test for assessing reasonableness had been laid down by Justice Sikri himself, in Modern Dental College vs State of MP (discussed on this blog here), and it was the test of “proportionality”:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

Mr Datar pointed out that for 0.4% of duplicate PANs, 99.96% of taxpayers were being forced into Aadhaar. How, he asked, was this proportionate? In the balancing of interests between duplicate PANs and the freedom to do business, proportionality – in this case – clearly weighed in on the side of the former.

Mr Datar concluded by stating that this was a very serious case, with far-reaching consequences for civil liberties. Responding to the Attorney-General’s contention that all that had happened was that an extra “A” had been added to S. 139A, making it “Section 139AA”, he urged the Court to stop the encroachment on individual rights at its first step. He ended by quoting Justice Douglas of the US Supreme Court:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

Issues before the Court

The Supreme Court has to resolve the following issues:

(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?

(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?

(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?

(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?

(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?

(f) Does 139AA amount to compelled speech under Article 19(1)(a)?

(g) Does 139AA violate the principle of informational self-determination under Article 21?

(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?

Options before the Court

The Court may do one of the following six things:

(a) Strike down S. 139AA as unconstitutional.

(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.

(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.

(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.

(e) Refer without staying

(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.

 

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Filed under aadhaar, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Privacy

The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN) – II: The Union’s Arguments

In the previous post, I detailed the petitioners’ arguments in the constitutional challenge to S. 139AA of the Income Tax Act, which effectively makes enrolling for an Aadhaar number compulsory for taxpayers. After Petitioners completed their arguments, the Union of India – through the Attorney-General, Mr Arghya Sengupta, and Mr Zoheb Hossain – responded in defence of S. 139AA. Mr Shyam Divan and Mr Arvind Datar then replied for the Petitioners. In this post, I shall provide a brief account of the arguments, isolate the issues that the two-judge bench of the Supreme Court must address, and outline the possible outcomes.

The Attorney-General’s Arguments: A Limited Right to Bodily Integrity

The Attorney-General argued that the Petitioners’ Article 21 challenge to S. 139AA – focusing on bodily integrity – was nothing but a camouflaged privacy challenge, which the Court could not examine at this stage (see previous post on the dropping of privacy arguments from the present proceedings). However, assuming that there was an independent right to bodily integrity under Article 21, the thrust of the Attorney-General’s argument was that this right could be limited by the State – and in fact, was limited by the State in a number of other domains, in ways equally, or more, intrusive than Aadhaar. For instance, Section 32 of the Registration Act, 1908, required all ten fingerprints as a pre-requisite for registering property. People routinely subjected themselves to biometric collection while traveling abroad. More broadly, the Attorney-General argued that Aadhaar only did something that was already normalised and routinised in society: in an era of ubiquitous photography, what was so unacceptably intrusive about an iris scan? Given the ubiquity of online transactions through smartphones, what was so intrusive about having to part with one’s data for the purpose paying taxes? To accede to the Petitioners’ arguments would be to set a legal standard that could only be fulfilled by hermits living alone in the mountains, and not citizens part of the modern, digital economy.

Although the Attorney-General did not specifically use the term, what he appeared to be doing was borrowing the American doctrine of “reasonable expectation of privacy“: that is, the scope of one’s right to privacy – or, in the language in which this case was argued – “bodily integrity” – is determined by what is socially sanctioned and understood as reasonable at any given time. Briefly put, the Attorney-General’s case was that Aadhaar calls upon citizens to give up only that which they voluntarily and regularly give up as part of their daily lives; consequently, there was no constitutional violation to start with.

The Attorney-General then argued that in any event, citizens had no absolute rights over their bodies. In this case, there was a larger public interest that justified the level of infringement. For instance, the Medical Termination of Pregnancy Act regulated the conditions under which a woman could abort her foetus. Random breath checks for drunken driving were required in the interests of road safety. At this point, Justice Sikri interjected, and wondered whether those examples were analogous, because in those cases, the restrictions were clearly reasonable. To this, the Attorney-General replied that in the present case as well, there was a larger public interest: the effective and efficient collection of taxes, which was an integral part of life in an ordered society.

To substantiate this argument, the Attorney-General took the Court through the history of PAN Cards, and the perceived need to replace them with Aadhaar. He argued that on a random verification of 0.2% of all PAN Cards, a number of duplicate PANs were thrown up. Besides, over the previous twenty years, the existence of shell companies, the presence of directors in multiple companies, and multiple PAN holders, had all come to light. India was a highly tax non-compliant society. Furthermore, in addition to tax dodging, there were also problems of black money, which was used to finance terrorism. For all these reasons, it was important to develop a system in which identification could not be faked. The Attorney-General submitted that the only way to accomplish this was to digitise fingerprints and iris scans, and keep them for posterity. At present, fingerprints and iris scans could not be duplicated, and consequently, the shift to Aadhaar was necessary. Furthermore, this data would be encrypted and stored in a centralised server, and shared only with the police in case it was needed for resolving a crime.

Aadhaar itself, the Attorney-General submitted, was originally conceputalised to prevent leakages in the public distribution system, in payment of wages under the NREGA, in the payment of pensions, and so on. He argued that with Aadhaar, more than Rs 50 crores had been saved by plugging leakages. Consequently, even if there was some infringement of individual rights, it was balanced by the larger public goal, as mandated – according to the Attorney-General – by Rousseau’s conceptualisation of the social contract. Individuals were in a contractual relationship with the State from their birth, reliant upon it for a host of benefits; how then could they refuse to pay their taxes in the manner mandated by the State?

Indeed – according to the Attorney-General – the Supreme Court had itself sanctioned the use of Aadhaar in PDS schemes in 2011, and in SIM card verification just a couple of months before. Furthermore, an accurate identification system such as Aadhaar was needed to ensure that India was in compliance with its obligations under international agreements such as the FATCA. For all these reasons, the Attorney-General submitted that Aadhaar was entirely within the parametres of Article 21 of the Constitution.

He concluded his arguments by submitting that within the contours of the social contract, nobody had a right to make themselves invisible: “you may want to be forgotten. But the State does not want to forget you.

Returning to this argument at a later point in his submissions, the Attorney-General also argued that a number of Supreme Court cases – such as Kathi Kalu Oghad – had held that compelling persons accused of a crime to provide their fingerprints had been held not to violate the constitutional right against self-incrimination. So why couldn’t the State put in preventive measures to check tax dodging in advance? Justice Sikri interjected to say that the Kathi Kalu line of cases might not be apposite, because they involved accused in criminal cases; surely it was not right to treat the entire country as presumptively accused of tax dodging. The Attorney-General replied that he was only arguing that the right to bodily integrity was not absolute – it could be taken away in certain cases. “Which cases, is the question“, Justice Sikri responded. “Even your life can be taken away under Article 21“, the Attorney-General continued. “But only with due process,” Justice Sikri replied. “We must balance individual dignity with State interests.” The Attorney-General responded: “at the end of the day, if you can give your fingerprints for registering property, why can’t you give your fingerprints for this?

Still later in his submissions, the Attorney-General cited precedents from the American Supreme Court about urine testing for school athletes, DNA testing of a rape accused, and – perhaps paradoxically – Roe vs Wade – to reiterate that the right to bodily integrity was not absolute.

Article 19(1)(g)

The Attorney-General’s rebuttal to Mr Datar’s argument on Article 19(1)(g) was brief. He stated that there was no violation of Article 19(1)(g), and expressed surprise that in this day and age, someone was making a constitutional argument based on Article 19(1)(g).

S. 139AA and the Aadhaar Act

The Attorney-General submitted that there was no conflict between Section 139AA and the Aadhaar Act. Responding to Mr Shyam Divan’s submission that the coercive character of 139AA could not stand alongside the voluntary nature of Aadhaar, the Attorney-General argued that Section 7 of the Aadhaar Act was at least partially mandatory: the State could tell citizens “either you should have an Aadhaar Act, or you jolly well apply for it.” Furthermore, under S. 57 of the Aadhaar Act, Aadhaar could be used for purposes other than those stipulated in the Act itself. And in any event, he argued, Parliament’s power to prescribe uses for Aadhaar was plenary, and subject only to the Constitution. The Attorney-General added that the Aadhaar Act came built in with safeguards: Section 29, for instance, prohibited the sharing of information. True, there had been some leaks of late; but those leaks, he argued, had not come from the UIDAI, or the central government, but the Jharkhand state government; and in any event, biometric details had not been compromised – only bank account information had.

Parliamentary Legislation and Court Orders

The Attorney-General’s final argument was that whatever the status of the pre-2016 Supreme Court orders stipulating that Aadhaar could only remain voluntary, all these were overridden by subsequent legislation. There was no such thing as “legislative estoppel“. No Court could injunct Parliament from passing laws as it deemed fit. By passing the Aadhaar Act – and then s. 139AA – the Parliament had simply exercised its plenary powers, and passed validating legislation taking away the basis of the prior court orders.

The Attorney-General concluded his arguments by citing a World Bank Report praising the Aadhaar system. Everyone needed an identity, he argued. Many people in India had no identity. Aadhaar was a method to bring them into the mainstream, prevent exclusion, and guarantee them their dignity.

The Arguments of Mr. Arghya Sengupta: Article 14 and Proportionality

Continuing the case for the Union, Mr Arghya Sengupta argued that Mr Datar’s claim that 139AA violated Article 14 of the Constitution was incorrect, because Article 14 did not require the Court to undertake a proportionality analysis. He cited K.T. Plantations for the proposition that a proportionality test effectively amounted to judges substituting their wisdom for that of Parliament. Taking the Court through comparative law, Mr Sengupta submitted that traditional judicial review claims in the United Kingdom had never included a proportionality test. While the European Court of Human Rights did incorporate a proportionality analysis into its rights-analysis, this only caused greater confusion than resolution. Relying upon Lord Pannick and Lord Hoffman, Mr Sengupta submitted that “the reasons for not treating people equally often involve considerations of social policy.” Justice Sikri interjected to observe that equality claims in the United Kingdom – which didn’t have a Constitution – might be treated differently from how they were in India. Mr Sengupta responded that the broader point was that proportionality only entered the picture when some balancing of rights was involved. Article 14 only required the Courts to ask whether there existed a valid reason for treating people differently from one another. There was no question of balancing. In fact, Article 14 was not about “rights” at all; fundamentally, it was about “wrongs”. Mr Sengupta concluded this argument by citing Professor Rebecca Dixon for the proposition that even the proportionality test had begun to collapse into the traditional test, and argued for the retention of the traditional Indian test of intelligible differentia and rational nexus.

On the merits of Article 14 itself, Mr Sengupta argued that Mr Datar was incorrect in arguing that the disproportionate penalty for not complying with Article 139AA rendered it violative of Article 14. Relying upon the McDowell Casehe repeated his submission that proportionality could not be invoked to strike down a statute under Article 14. Nor could a statute be struck down on grounds of arbitrariness. Justice Sikri interjected that, by virtue of Mardia Chemicals, it might be possible to invalidate a statute on grounds of arbitrariness. In response, Mr Sengupta cited Rajbala vs State of Haryana, which had rejected the arbitrariness doctrine (for a previous discussion of this debate on this blog, see here; for an analysis of Rajbala, see here).

Coming to the traditional classification test under Article 14, Mr Sengupta opposed Mr Datar’s argument that by making Aadhaar compulsory only for individual assessees, S. 139AA violated the rational nexus test. He argued that, by definition, only individuals could have Aadhaar numbers (as opposed to companies, or HUFs). Consequently, Parliament had chosen to first focus on the problem of black money and tax evasion committed by individuals, and had brought in Aadhaar to check that. No enactment, Mr Sengupta argued, could completely solve a social problem. Parliament had decided to make a start with individuals, and at a future date, would devise ways for dealing with the other categories of assessees as well.

Justice Sikri said that he understood that there was no discrimination if companies were incapable of even having Aadhaar numbers. However, the question was why discriminate between two people, both of whom were willing to pay tax, if one of them was willing to enrol for an Aadhaar number, and the other was not. Mr Sengupta replied that the purpose of 139AA was not to discriminate, but to prevent duplication of PAN cards. So the discriminatory object test under Article 14 – as Mr Shyam Divan had argued – was inapplicable. In fact, much like in the US, when TIN was replaced by SSN, in future, the State might choose to replace PAN with Aadhaar entirely.

Conscientious Objection

Mr Sengupta submitted that Mr Divan calling his clients “conscientious objectors” who were being discriminated against was entirely misplaced. Citing texts on civil disobedience and conscientious objection, he argued that what Mr Divan was essentially arguing for was a license to break the law. You may not want to stand up for the national anthem, he pointed out, but that did not mean you could sit down. Justice Sikri observed that that might not be an entirely accurate framing; the petitioners had, after all, approached the Court to have the law struck down. Mr Sengupta replied that there could be conscientious objection to all kinds of laws, but that in itself did not make them discriminatory.

Informational Self-Determination

Mr Sengupta’s final argument was on informational self-determination. He submitted that there was no absolute right to informational self-determination. The State could – and did – collect a wide range of information from individuals: births, deaths, marriages. The information that the State required from its citizens was extensive, and nobody challenged it. In any event, Mr Sengupta argued, whatever right to informational self-determination – in the apparent guise of privacy – did exist, it would have to be conditioned and defined by cultural factors. India was very different from Germany, from where Mr Divan had drawn his doctrine. There would have to be devised an Indian doctrine of informational self-determination, drawn from Indian conditions. Citing Mark Tushnet on the dangers of comparative law, Mr Sengupta argued against “importing” the conception of privacy into India.

At this point, Mr Divan interjected and said that his argument was not a privacy argument, but an argument about his right to his body. Justice Sikri observed that there might be overlaps between the two concepts. Mr Divan responded that there might indeed be overlaps, but that his right to bodily integrity was not subsumed within his right to privacy. Mr Sengupta argued that it was not open to this Court to draw a distinction between privacy and informational self-determination; given that the very question of privacy was pending before the Constitution Bench, it was for the Constitution Bench to decide what the scope of privacy was, and whether or not it included informational self-determination. Returning to his argument about importing foreign law into India, Mr Sengupta cited Justice Antonin Scalia of the American Supreme Court who, in a death penalty case, had resisted the use of comparative precedent, arguing that in judging whether the death penalty in a particular case was “cruel and unusual punishment”, only “American standards of decency” ought to be looked at.

In any event, Mr Sengupta continued, even the German Constitutional Court required a balancing between individual and community interests. He repeated his submission that the right to informational self-determination was fundamentally about privacy, since the right to control information about oneself was a facet of privacy. If the Court was going to go into that, then there was a compelling State interest in the present case: that of preventing duplicate PANs, and ensuring efficient collection of taxes. Justice Sikri stated that the Petitioners would have to show why they had a right to pay taxes in the manner that they desired. Mr Sengupta continued by saying that biometric collection was the most sophisticated system presently known. PAN was the technology of 1975, he concluded; but Aadhaar was the technology of 2016.

The Arguments of Mr Zoheb Hossain

Mr Zoheb Hossain observed that India is a progressive tax regime. Progressive taxation was itself a facet of Article 14 of the Constitution. 139AA served this progressive goal by eliminating the inequality between taxpayers and tax evaders, by making duplication of PANs impossible. There was no discrimination against individuals; in fact, there were other provisions of the Income Tax Act – such as dividend distribution tax – applicable only to companies.

Mr Hossain then argued that Mr Divan was incorrect to argue that compelled taking of biometric details and iris scans amounted to compelled speech. Citing United States vs O’Brien, he argued that not every act or conduct amounted to “speech”.

Mr Hossain concluded by arguing that the standard for injuncting a parliamentary legislation was extremely high. There could be no injunction unless the statute was manifestly unconstitutional. Consequently, if the Court was inclined to refer the case to the larger bench, it ought not to grant a stay on the operation of S. 139AA.

(Disclaimer: The writer assisted the Petitioners in the constitutional challenge before the Court.)

 

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Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

In the last post, I argued that taxing sanitary pads non-trivially disadvantages women, on the ground of their sex, and consequently, violates Article 15(1) of the Constitution. There have been a substantial number of responses to the argument, both in the comments section of the blog, and elsewhere, which have pushed me to clarify and refine some of my thinking that went into the original post. In this post, I shall attempt to respond to some of the points that have been made.

“Sex” is Not a Biological Fact

I should start by clarifying that my original post assumed “sex” to be both binary, and a given, biological fact. We now know that this framing of “sex” is just that: an assumption, or a social construction. Without getting into complex terminological debates about the difference between “sex” and “gender”, it was correctly pointed out in the comments that in NALSA vs Union of India, the Supreme Court has (at least implicitly) accepted that “sex” under Article 15(1) of the Constitution is as much a matter of personal identification, as it is a matter of biology. It was also pointed out that the argument bypasses the rights of transgender individuals.

I accept the thrust of these criticisms, insofar as there exist individuals who do not identify as women, but who also menstruate, and require sanitary pads. For the purposes of this post, however, while acknowledging this reality, I want to continue using “sex” in terms of a distinction between men and women – only for the reason that the argument depends on working within existing law and jurisprudence, both of which are committed to the binary, objective understanding of “sex”. Once we succeed in establishing the case for sex discrimination on the old, classic model, we can then explore how we might extend it to our present, more nuanced understandings of “sex” and “gender”.

The Gendered Implications of Taxation Regimes

At the heart of a lot of comments disagreeing with my argument, I think, lies a sense of unease with running together tax law and discrimination law. We are accustomed to thinking of taxation as a sovereign function, which conceptually depends upon the State having to make discretionary choices about how best to raise revenue, through a system of financial incentives and disincentives. Taxes, ultimately, are guided by economic considerations and an assessment of goods and services, not of people. Consequently, while it is possible that tax might be used as a weapon of discrimination (jizya is a classic example) – and indeed, both the American and the Indian Supreme Courts have noted the possibility of punitive taxation being used to stifle the free press – this is limited to exceptional cases where the State is clearly acting with hostile purpose.

I would suggest, however, that according taxation law a high threshold immunity from the norms of discrimination would be a mistake. On the contrary, taxation gives the State such a powerful weapon to mould behaviour, that we should be specially solicitous of testing a taxation regime against constitutional norms. Goods and services are intrinsically linked to peoples’ conduct, choices, and ways of living. In my last post, I took the example of a tax levied only on crucifixes: while this might be dismissed as a very obvious, and unlikely example, there are other, indirect ways, in which tax regimes can be discriminatory.

An excellent judicial example of this is the judgment of the Canadian Supreme Court in Symes vs Canada. In Symes vs Canada, it was argued that disallowing childcare expenses as “business deductions” under the Income Tax regime was discriminatory on grounds of sex. The Appellant argued that, in view of the fact that women bore a disproportionate burden of childcare within the family, and consequently, were far more likely to need to hire child-carers in order to pursue their business interests, refusing business deductions amounted to sex discrimination. More broadly, the Appellant’s argument attacked the central assumptions of the Income Tax regime, which had been enacted at a time when gender roles were more rigid, and it was presumed that businesspeople would be male. For instance, under existing precedent, expenditures on taking clients out to golf, or to dinner, were deductible as business expenses, on the ground that these expenditures bore a proximate relationship with promoting the assessee’s business. Under that logic, however, paying a child-carer to free up time to pursue business was equally proximate. The only reason why it was not allowed as a business deduction was that the Income Tax regime was founded upon the assumption of a clear separation between the home and the business world, and was unable to envisage a reality in which women would be primed to pursue business while continuing to be burdened with responsibilities of childcare.

We can therefore see how a seemingly innocuous element of tax policy – disallowing childcare expenses as business deductions – was based upon a set of assumptions that were presumptively sex discriminatory. Ultimately, by a 7 – 2 majority (interestingly, the only two women on the bench were also the two dissenters), the Supreme Court rejected the case of the appellant; but it did so on the technical ground that the appellant had not shown that women bore a disproportionate share of the expenses on childcare (as distinct from responsibilities of childcare). What remains important, however, is that both the Majority and the Dissent(s) agreed that the taxation regime could – and often did – impact gender equality in both direct and indirect ways.

Condoms, Aftershave Lotion, Lipstick, Underwear, and Disadvantage

Many of the objections to my arguments took the form of counter-examples: if I was resting my case against taxing sanitary pads on the proposition that only women used them, then by the same logic, (men’s) condoms, (men’s) aftershave lotion, (women’s) lipstick, and (women’s) underwear should also be exempt from taxation under Article 15(1).

I should start by clarifying that there are two responses to this that I am not relying upon. First, I am not relying upon Article 15(3) of the Constitution. As I have argued before on this blog, I do not believe that Article 15(3) provides a carte blanche to the State to pass any law benefiting women at the expense of men. Article 15(3)’s location within the broader anti-discrimination clause clearly indicates that it is limited to saving those laws that benefit women with a view to remedying historical and structural discrimination. Consequently, if the principles of my argument applied equally to sanitary pads and to aftershave lotion, then 15(3) could not be a ground to legitimately deny men the benefits of tax-free aftershave.

Secondly, I am not resting my argument purely on a distinction between essential items and luxury goods. That distinction is important, but – as I shall go on to show – it is better understood as an argument not about essentials/luxuries, but about disadvantage.

In the last post, I had argued that the key to my argument under Article 15(1) is a shift from understanding discrimination law as being about a strict comparison between two classes, to understanding it as being about remedying historical and structural disadvantages. These disadvantages – which could take the form of deprivation of goods and services, or humiliation and insult – were located around the sites – or grounds – set out by Article 15(1): sex, race, religion etc.

I should clarify what I mean by this: I do not mean that we should stop thinking of discrimination as a question of equality. However, the kind of equality that is at stake when we think of discrimination law is – in the words of the South African Constitution“the full and equal enjoyment of all rights and freedoms.” The shift is a subtle, but important one: our enquiry is now not whether “X” action applies to “A”, but not to “B” (the strict comparator approach, under which sanitary pads do not raise a discrimination issue because – as a commentator pointed out – men do not menstruate); but rather, does “X” action affect “A’s” “full and equal enjoyment of all rights and freedoms” in a manner that it doesn’t affect “B’s”.

Now if we understand a sanitary pad tax as – effectively – a tax on menstruation, then the applicability of the second framing of discrimination (as disadvantage) should become easier to analyse. It is important to start by noting the well-documented social, cultural, and economic role played by perceptions of menstruation in upholding (unequal) gender roles in society: many societies have viewed menstruation as a symbol of impurity and inferiority; but perhaps more importantly for our purpose, the physiological effects of menstruation have serious economic ramifications upon women’s participation in the workplace on equal terms with men (consider the recent debates on paid menstrual leave, for instance), as well as upon their reproductive health.

I have only set out the form of the argument here: a complete argument would require a detailed scientific and sociological study of the societal affects of menstruation, and the role of sanitary pads in that context. It would also require dealing with an objection raised in the comments, namely, that in view of the fact that only 12% of Indian women use sanitary pads (and the other 88% have to make do with alternatives), in the Indian context perhaps sanitary pads are luxuries: to answer this objection, we would need to consider both women’s testimony, and scientific evidence, on how sanitary pads mitigate the debilitating effects of menstruation

Presumptively, however, I hope that this makes clear the distinction between sanitary pads on the one hand, and condoms, lipsticks, aftershave lotion, and underwear on the other (this is apart from the fact that neither condoms nor underwear is sex-specific): a tax on sanitary pads is effectively a tax on menstruation. It is discriminatory because it entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate. Now if a similar argument can be made for other items, then there is a ground for exempting them from tax as well.

Why Not Article 21? 

Many commentators were of the view that Article 21 – through arguments about the right to dignity and the right of access to health – might provide a better constitutional foundation for an argument against taxing sanitary pads. I would, however, prefer to maintain a focus on Article 15(1), for three reasons: first – for the reasons advanced above – I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory; secondly, an Article 15(1) argument helps us to move beyond the strict comparator bind that we’ve been in for the last six decades, and to think of fresh ways of conceptualising discrimination; and thirdly, I’m hesitant about an expansive reading of Article 21. As I have argued before on this blog, we should be wary of continuing to use Article 21 in a manner that both dilutes the core right (life and personal liberty), as well as risks taking us to a place where Article 21 begins to swallow up other rights under the new judicial fad of “balancing rights”. This does not, of course, take away from the fact that the sanitary pad tax does raise a core issue of access to health (as much as it raises an issue of discrimination), and under existing jurisprudence, Article 21 does include a right of access to health.

Specific and Holistic

One commentator raised an important point: would the tax on sanitary pads remain discriminatory if it was shown that overall, the tax regime as a whole was more favourable to women than men? In other words, what if it could be shown that the burden on sanitary pads was offset by other benefits in the IT Act, so that at the end of the day, women had a smaller overall tax burden?

In my view, I think this argument would have force if we continued to think about discrimination as centred around a strict comparative approach. On the shift to the disadvantage approach, however, it doesn’t matter if overall women are placed better off than men: the tax on sanitary pads – which is effectively a tax on menstruation – causes disadvantage that is of concern to discrimination law, even if that disadvantage is offset by advantage elsewhere. However, I am not entirely convinced of this response.

Conclusion

In conclusion, therefore, I think that despite some nuanced and important objections, the basic form of the argument – that a tax on sanitary pads presumptively constitutes sex discrimination under the Constitution – continues to hold. Whether it actually constitutes sex-discrimination depends upon producing the kind of evidence that I have outlined above, including – and especially – the personal testimonies of women.

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Filed under Article 15 (general), Article 21 and the Right to Life, Equality, Non-discrimination, Right to Health, Sex Discrimination

Does a tax on sanitary pads violate Article 15(1) of the Constitution?

The last few days have seen a campaign asking for a removal of the tax on sanitary pads (which is 5% in Delhi, and goes up to 14% in certain states). It has been argued that the premise of taxing sanitary pads is that they are luxury items; however, their impact on reproductive health and the overall well-being of women, at home and in the workplace, marks them out as essential items rather than luxury goods.

In this post, I will attempt to advance an alternative, legal argument: I will contend that a tax specifically on sanitary pads is unconstitutional, since it amounts to “discrimination on grounds… of sex“, which is prohibited by Article 15(1).  While the argument itself is simple, the possible objections to it are many and complex; consequently, I shall address them in some detail.

Sanitary Pads and Article 15(1)

Article 15(1) prohibits, inter alia, sex discrimination. Discrimination, both in its common usage, as well as in the understanding of the Supreme Court, broadly means to unequally allocate benefits and burdens among identifiable classes of people.

Sanitary pads, by definition, are used only by women. A tax on sanitary pads therefore amounts to a burden upon women. Or, to put it another way, but for being a (menstruating-age) woman, an individual would not be burdened by the sanitary pad tax. Under the classic definition, therefore, the tax discriminates on “grounds of sex.”

This probably sounds rather counter-intuitive. Perhaps the following analogy might help: would not a specific tax on crucifixes amount to discrimination on grounds of religion? If, intuitively, we think that it would, then there is every reason to hold that a tax on sanitary pads amounts to discrimination on grounds of sex: sanitary pads are, arguably, even more important for women than crucifixes are for Christians. That it does not intuitively appear to be so is probably because of a host of political and historical reasons, which have ensured that religious identity is salient in a way that sexual identity is not.

Let us now consider the objections.

Objection 1: The tax is on items, not on persons

The first, obvious, objection is that the tax in question is not a tax on women, but a tax on sanitary pads. Article 15(1) only prohibits discrimination “on grounds of sex“. It does not prohibit discrimination that will ultimately effect a particular sex only (readers will notice echoes of Koushal vs Naz, which held that Section 377 punished only acts, not people).

It is far too late in the day, however, to advance this argument. It is now firmly established, through more than six decades of constitutional jurisprudence (and indeed, pre-constitutional jurisprudence), that the correct test to be used in determining the constitutionality of a statute is not its object or form, but its effect upon rights. This was the holding of the Constitution Bench of the Supreme Court in Khandige Sham Bhat vs Agricultural Officer, in Prem Chand Garg vs Excise Commissioner, and – specific to Article 15(1) – in  Anuj Garg vs Hotel Association. Consequently, the fact that the tax is not a tax on women makes no difference; the fact that it affects women, and women alone, brings it within the ambit of Article 15(1).

Objection 2: “On grounds only of…

A second possible objection might point to the text of Article 15(1), which prohibits discrimination on “grounds only of… sex.” Focusing on the word “only“, the argument would then be that the tax does not burden all women, but only menstruating-age women who use sanitary pads. Consequently, it does not amount to discrimination on grounds only of sex, but “sex-plus”, as it were.

In the early years of Indian sex discrimination jurisprudence, various High Courts disagreed precisely on this issue. While some High Courts upheld putatively discriminatory laws on the basis that they took into account sex and other factors not within the ambit of Article 15(1), other High Courts held that Article 15(1) was applicable to discriminatory laws that were based on sex, and other factors “arising out of sex.” For our purposes, however, the controversy was put to rest by the judgment of the Supreme Court in Air India vs Nargesh Mirza, which held that pregnancy-based discrimination was hit by Article 15(1). The case of pregnancy, I would submit, is on all fours with the case of sanitary pads: not all women get pregnant, but only women get pregnant; similarly, not all women menstruate (and thereby need sanitary pads), but only women menstruate.

More broadly, jurisdictions world over are moving away from what the discrimination law scholar Tarunabh Khaitan calls the strict comparator test. In other words, it is no longer necessary to show, in order to make out a claim of discrimination, that a law must burden all members of one defined class, as opposed to the other. Discrimination law is shifting its focus, rather, to the question of whether laws disadvantage members of a class by virtue of their belonging to that class. That, as we have seen, is clearly the case here.

Objection 3: No Comparator

A more subtle form of the objection, however, might be as follows: given that there is simply no equivalent to sanitary pads for men, it makes no sense to say that a tax on sanitary pads discriminates against women; the whole point of discrimination law is that it is comparative. If, therefore, you cannot by definition tax men on the equivalent of sanitary pads, because such an equivalent doesn’t exist, then the act of taxing women might be problematic in other respects, but it is not an act of discrimination.

Readers will note that this argument restates the comparator claim in a more subtle form: the claim is no longer that the comparison must be between all women and all men, but that there must be something to compare to.

There are three responses to this argument. The first is that the logic of Nargesh Mirza covers this situation as well. In Nargesh Mirza, it was held that penalising pregnancy amounted to sex discrimination, notwithstanding the fact that men could not, by definition, get pregnant. Here, the State is penalising the use of sanitary napkins, notwithstanding the fact that men do not, by definition, use sanitary napkins. The analogy with Nargesh Mirza might not be immediately intuitive, perhaps because, on reflex, we think of pregnancy as a condition, and sanitary pads as an item of use. On the comparator logic, however, both are the same.

Secondly, we can restate Khaitan’s point that the focus of discrimination law is shifting from comparison to disadvantage. Discrimination law now sees as its focus the redressal of structural and institutional conditions that have been historically responsible for subordination on the basis of certain personal characteristics, such as race, religion, gender, etc. Placing a monetary premium upon menstruation fits within this particular understanding of discrimination.

Thirdly, let us go back to our hypothetical of a tax on crucifixes: there is no specific equivalent of a crucifix in other religions. Can we then say that a tax on crucifixes does not discriminate against Christians? The answer is no. Now, you might argue that the comparator there is other religious symbols, such as the Muslim skullcap, or the Sikh turban. Fair enough; but let us imagine that there are only two religions, Christianity, and Religion X, which has no “symbols“, but is an entirely abstract religion. Now, would we say that a tax on crucifixes does not discriminate on grounds of religion? I would submit that the answer would remain no, suggesting that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons.

Objection 4: After-shave lotions?

The last objection is a consequential one: there are many products used exclusively by women, and many products used exclusively by men: for instance, aftershave lotion. Holding a tax on sanitary pads unconstitutional would mean that none of those products could be taxed. This is an absurd consequence, and any interpretation that supports this consequence must be rejected.

While I am somewhat tempted to bite the bullet and say yes, a tax on aftershave lotion would be unconstitutional on grounds of Article 15(1), I think that there is a crucial distinction between sanitary pads and aftershave lotion, and that it is a distinction that is relevant to discrimination law. This distinction requires us to stress once more that the point of discrimination law is not to capture every instance of dissimilar treatment on the “grounds” set out under Article 15(1), but to remedy disadvantage. It is here that the arguments made by the political campaign – referred to at the beginning of the post – become relevant, because it has been shown that the use of sanitary pads is crucial to women’s reproductive health, as well as their participation in the workforce on equal terms with men. Placing a monetary premium on sanitary pads, therefore, is discriminatory because it disadvantages women, on grounds of their sex, in a non-trivial way. I am not sure if a similar case can be made for aftershave lotion.

Conclusion

Let me sum up my argument. A tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution. The fact that it does not affect all women (only menstruating women) makes no difference from the perspective of Article 15(1). The fact that it does not, by definition, affect men at all, also makes no difference from the perspective of Article 15(1). And finally, Article 15(1) is attracted because discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex. This makes the initial, presumptive applicability of Article 15(1) absolute.

*I am grateful to Suhrith Parthasarathy and Jawahar Raja for helping me think through some of the issues in this piece.

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