Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[This is a guest post by Ashwin Vardarajan.]


On 6 July 2020, the University Grants Commission (‘UGC’) released guidelines directing all colleges, universities and institutions of higher education to conduct final year/ terminal semester examinations before 30 September 2020 (‘Guidelines’). These Guidelines had been released at a time when the number of COVID-19 cases continued, and still do, to increase exponentially with every passing day; and have added to additional stress on universities, colleges and students across the country. Naturally, several petitions were filed before the Supreme Court (‘SC’) challenging these Guideline on several grounds, which were all collectively heard and decided by a three-judge-bench in Praneeth K and Ors. v. University Grants Commission [Writ Petition (Civil) No.724 of 2020] (‘Praneeth’) on 28 August 2020.

Among other things, two constitutional questions were raised against the Guidelines before the SC: first, whether the UGC demanding Universities to conduct examinations under Section 12 of the University Grants Commission Act, 1956 (‘UGC Act’) were referable to Entry 66, List I, Seventh Schedule (‘E-66’) of the Constitution of India (‘Constitution’); and second, whether the Guidelines violated the rights of students under Articles 14 and 21 of the Constitution. Not only does the SC – in its 160-page judgment – fail in its duty to logically appraise the existing position of law, it also adopts a surprisingly un-empathetic approach towards the plight of the students . Furthermore, the judgment has also created friction within the existing framework of law. This essay examines the two constitutional questions enumerated above.

E-66 and ‘standards of education’

The first issue was whether the Guidelines prescribed under Section 12 of the UGC Act were beyond the UGC’s competence referable to E-66. E-66 reads as follows:

Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions

The SC, inter alia, looked at the meaning of ‘standards for education’ – within the meaning of E-66 – through a catena of decisions and proceeded to determine whether the Guidelines also fell within the gamut of the entry. Section 12 of the UGC Act allows the UGC to undertake steps ‘for the determination and maintenance of standards of teaching, examination and research in Universities’, and the impugned Guidelines were issued under this provision. For the SC, use of the term ‘examination’ under Section 12 meant that the UGC is permitted by law to demand universities to conduct examinations through the Guidelines vide E-66 – as it stimulates coordination and determination of the ‘standards of education’, which also includes ‘standard of examination’. The SC understood Section 12 in light of the preamble of the UGC Act, and held that the phrase ‘standard of examination’, under Section 12, fell in line with the phrase ‘standard of education’ within the language of E-66, thus ruling in favour of the UGC (Praneeth, paras.57, 62).

Admittedly, a Constitution bench of the SC in Preeti Srivastava v. State of MP [(1999) 7 SCC 120] had set down several illustrations to define ‘standards of education’ under E-66. For them, ‘standards of examination’ – which included ‘the manner in which the papers are set and examined and the clinical performance is judged’ – was contained within the phrase ‘standard of education’. This remark, however, was made specifically in the context of how ‘examinations’ need to improve the ‘standards of education in an institution or college’ (Preeti Srivastava, SCC p.154-5).

This means that ‘standard of education’ under E-66 speaks of the ‘quality’ (as a synonym for ‘standard’) of examinations. Therefore, the standards of questions in an exam, their difficulty levels, who would correct and formulate the questions, and other aspects of like nature would ideally fall within the bracket of ‘standard of examinations’ as a taxonomy of ‘standard of education’ under E-66. But here, the Guidelines do not alter the examinations’ character to further ‘coordination or determination’ in ‘standards of education’. They merely mandated the Universities to organise and complete them before 30 September 2020. In this light, SC’s conclusion that the Guidelines are in consonance with E-66 through Section 12 of the UGC Act is far-fetched and, at best, incorrect.

The petitioners also relied on the SC’s decision in Modern Dental College v. State of MP [(2016) 7 SCC 353] (‘MDC’) – where it was categorically observed that ‘standard of education…would not include conducting  of  examinations’ as it does not affect any ‘standards’ – to establish that the Guidelines issued under Section 12 are not in referable to E-66. In MDC, the SC was, inter alia, tasked to determine whether ‘admissions’ were covered exclusively under E-66. While answering the question in the negative, the SC passingly noted that mere conduction of examinations would not be included under E-66 (MDC, para.101). However – and it is submitted, incorrectly – the SC rejected this assertion by the petitioners by distinguishing MDC on facts; and in their quest to do so, they observed the following:

62. The Constitution Bench in paragraph 101 has used the expression ‘not include conducting of examination etc.’  In the present case, there is no claim on behalf of the   UGC that it is the UGC which shall conduct the examination of the graduate and postgraduate students. The examinations are to be conducted by the respective Universities only. The above observations made by Constitution Bench in paragraph 101 as relied by learned senior counsel for petitioner, cannot be treated to be laying down any preposition that University Grants Commission has no competence to lay down any standards with regard to examination.

This clearly misses the point. Put simply, the petitioners never argued that the UGC could not conduct the exams. The petitioners rather argued against the Guidelines being in furtherance of coordination of determination of the ‘standards of education’ vide Section 12 of the UGC Act – which essentially meant that the UGC could not demand/force colleges to conduct examinations within a deadline. Demanding colleges and universities to merely conduct ‘examinations’ would not lay down the standards of how exams are to be conducted, in the sense that they do not alter the quality or determining principles surrounding the examinations. Thus, the SC’s misinterpretation (of arguments and law) led them to go beyond what E-66 has been historically interpreted to mean, and creates friction within the existing position of law. However, considering that the decision was specifically in regards to Section 12 of the UGC Act, a future bench might yet distinguish its reasoning on facts.

Fundamental Rights and Fundamental Omissions

The petitioners also contended that the Guidelines violates the students’ rights under Articles 14 and 21 of the Constitution. For the petitioners, prescribing a single date deadline for examinations throughout India treated ‘unequals as equals’, which amounted to an Article 14 violation. And in light of the exponential rise in the number of COVID 19 cases, it was contended that ‘lakhs of students, teaching and nonteaching staff will be forced to risk their health and lives of their family members if they are asked to participate in the Final year/ Terminal examination’ (Praneeth, para.76). The SC rejected both the contentions as follows:

First, for them, the UGC ‘rightly’ fixed a common deadline to maintain uniformity in the academic calendar and that their decision was taken after careful assessment of the situation throughout the country, which ensured the ‘welfare of students’ and protected the ‘career prospect’ of final year students. To them the ‘criticism’ of the Guidelines ‘that they are unreasonable does not inspire any confidence.’ (para.74-5).

Second, clause 6 of the Guidelines required Universities to ‘carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments and MHRD/ UGC from time to time, in view of COVID-19’. This took the SC to the official memorandum (‘OM’) released by the HRD Ministry on 6 July 2020, which laid down the standard operating procedures universities and colleges would follow while conducting examinations. Upon reading the Guidelines read with the OM, the SC found it to be ‘abundantly clear that UGC, MHRD … are fully concerned with the health of all stakeholders’ and led them to the conclusion that Article 21 was not in violation (paras.81-2).

At the onset, one notes that the court rejected the argument by stating that the Guidelines were not ‘unreasonable’ or ‘manifestly arbitrary’. Article 14 concerns ‘equality’ before law, and courts must ideally acknowledge that the impugned law leads to unequal treatment before deciding whether such treatment was ‘reasonable’ or not; and they clearly did not do so although such treatment is violative of Article 14. Further, it is bewildering how setting one uniform date throughout the country for examinations was enough to treat unequals as equals in a reasonable way. UGC governs over thousands of colleges and several hundred universities throughout India, and not all those institutions would have students socially and economically capable of travelling to different cities for giving examinations, or afford safe means of transportation . This would, as the Delhi High Court in Madhu v. Northern Railway [2018 SCC OnLine Del 6660] has observed, have a ‘disparate impact’ on the disadvantaged students or lead to an operational inequality (also, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) and here). The SC inability to consider this issue through the aforementioned lens reflects a serious gap in reasoning, and a lost opportunity.

Further, the SC’s assessment of Article 21 was flawed, as their decision seems to have given precedence to the concerns raised by Government functionaries without actually appraising whether the life and personal liberty under Article 21 is at a threat of violation – which is an accepted ground for filing an Article 32 petition (and seems to have been the case here). Their reliance on the OM is further impeachable as it overlooks the risks students would be exposed to when they travel from one place to another to appear for the final year exams. The OM only lists the protocols colleges and universities are to follow after the students enter inside the campus to give their examinations. It does not consider the risks they would be exposed to before or after that – considering that many students would have to cross borders and cities to appear for their exams in person. The SC should have considered the ground realties that students would be confronted with – many of them have returned to their hometowns and would find it difficult to travel during times as transportation is a risky affair during an ongoing pandemic, thereby prima facie posing a threat to their lives and personal liberties.

Guest Post: On the Dangers of Reading Disparate Impact into Manifest Arbitrariness – a Response to Dhruva Gandhi

[This is a guest post by Shreyas A.R.]


Previously on this blog, Dhruva Gandhi had suggested that the Court in Navtej Johar attempted to read disparate impact analysis into the manifest arbitrariness test. In this piece, I will respond to Dhruva’s arguments by arguing why such a formulation is unnecessary, especially considering that the impacts analysis has been read into the reasonable classification test in Navtej itself, making the arbitrariness doctrine quite irrelevant for this purpose.

A brief recap is in order.

Reasonable classification and manifest arbitrariness are the two grounds which the Courts use to determine the constitutional validity of a measure when faced with an Article 14 challenge. Under the former test, a law will be held violative of Article 14 if it (a) classifies people without an intelligible differentia, and (b) the object sought to be achieved through the law has no rational nexus with the classification made. The manifest arbitrariness test, on the other hand, is well, arbitrary – in the sense that the Supreme Court itself has been unable to determine what the test really requires them to do. Indirect discrimination happens when a policy or a measure which appears neutral on the face of it puts members of a protected group at a disproportionate advantage as compared with the members of a cognate group. Disparate impacts analysis is the name given to the test to determine whether indirect discrimination has occurred.

For the purposes of this post, I will restrict myself to a specific question: does the test of manifest arbitrariness support a finding of indirect discrimination?

There are two reasons why it should not:

I. As Prof. Khaitan points out, indirect discrimination is structurally comparative, insofar as it disadvantages certain groups of people in relation to a cognate group. The arbitrariness test, on the other hand is a “test of unreasonableness of measures which do not entail comparison.” Take Nariman, J.’s framing of “manifest arbitrariness”, as laid down in Shayara Bano:

Manifest arbitrariness, therefore, must be something done capriciously, irrationally and/or without determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

None of the underlined words in the definition above seem to suggest that a comparative analysis could be possible under the test, which explains why manifest arbitrariness is also termed ‘non-comparative unreasonableness’. Seervai shares this suspicion, when he notes that the test “hangs in the air, because it propounds a theory of equality without reference to the language of Article 14”. Also note that when Navtej struck down Section 377 as being manifestly arbitrary, no equality analysis is done. Dhruva recognizes this objection, and argues that:

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

What it means is this: in order to support a finding of indirect discrimination, the Courts will ask whether there is a reasonable justification, or an ‘adequate determinative principle’ for upholding the differentia, i.e. the disadvantaged and the cognate group. In Navtej of course, the Court does not ask what the differentia is while determining the arbitrariness – it does so when it is testing Section 377 under the classification test itself.

In my opinion, Dhruva’s interpretation of manifest arbitrariness resembles the rational nexus prong of the traditional reasonable classification doctrine, much less an entirely separate ground of review. Recall that under the rational nexus prong, the Courts will ask whether there exists a reasonable connection between the objectives sought by the impugned measure and the differentia. In the absence of a rational nexus, or an ‘adequate determinative principle’, the Court will strike down the law as being violative of Article 14.

II. Another objection I take to the manifest arbitrariness test is that it prescribes no thresholds for the test to be activated. This could possibly be attributed to Bhagwati, J.’s framing of equality as being antithetical to arbitrariness in Royappa:

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…

My point is this: What capricious/ irrational/ without determining principle/ excessive/ disproportionate could possibly mean for the purposes of Article 14 has not been clarified by the Courts as yet. Why? By Royappa’s logic, the Court is not required to do so – the inequality is implicit in the arbitrariness of the measure itself. But even for the sake of playing the devil’s advocate, how do we determine what the implicit inequality is? There is no answer to this, and the Courts do not know either. This possibly explains why the Courts do not do much in terms of equality analysis while applying the manifest arbitrariness test. This enables individual judges to impose their own standards of morality to legislative review, which often results in the legislature’s wisdom being replaced by that of the judge, thus allowing the Court to enter into policy making under the garb of rights protection.

While this could occasionally have positive effects, such as Navtej where the Court applied constitutional morality to strike down a colonial law, it could easily go the other way as well. This objection is best exemplified by the Court’s judgement in the Bar Dancers case, where the Court chose to apply, and uphold the same colonial morality it had struck down in Navtej. (A detailed analysis by Anup Surendranath of all that was wrong with Bar Dancers is available here). This arbitrariness in application of the arbitrariness test does not bode well for equality jurisprudence, and can leave it at the mercy of the caprices of the judges who happen to be hearing the case.

Why does this matter?

Cases of indirect discrimination, and civil rights in general often involve inquiries into deeper questions on the moral goodness of a law, and what it means to be equal. On the other hand, the arbitrariness test divorces the content of equality from the inquiry. By characterizing discrimination as the mere result of an arbitrary state action, the Court loses an opportunity to afford judicial recognition to the various forms of structural inequality as they currently exist, (and as I will argue in the next section) update its jurisprudence accordingly, and possibly redeem itself. Navtej is transformative constitutionalism at its best– using constitutional morality to advance a notion of equality that could contribute in altering popular morality.

Having demonstrated the dangers of the arbitrariness test, I will now show that the reasonable classification test was used to make a disparate impact analysis in Navtej.

Typically, under the disparate impact test, when it is shown that a measure has led to disproportionate harm being caused to a group as against the cognate group, the Courts will hold that the right to equality has been prima facie infringed. It will then shift the burden to the defendant, and ask whether the measure nevertheless achieves its intended goals. In some jurisdictions, even if the defendant shows that there exists a legitimate justification for the practice, the plaintiff will prevail if it is demonstrated that there exists a better, alternate measure which can achieve the same goal without the disproportionate harm. On similar lines, Prof. Khaitan argues that the scope of inquiry under the nexus prong of the classification test could be expanded by asking the following questions:

Is the measure necessary to achieve the objective? Can the same objective be achieved using means that do not restrict fundamental rights?

I would suggest that Misra, C.J.’s reasons for finding Section 377 unconstitutional under the classification test employed the same analysis as well:

A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse. That being so, now it is to be ascertained whether this classification has a reasonable nexus with the object sought to be achieved. The answer is in the negative as the non-consensual acts which have been criminalized by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act.

Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even consensual acts, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. [paragraph 237]

Misra, C.J.’s reasoning here is quite simple: not only is the objective of protecting women and children from carnal intercourse already achieved by other laws (thereby making Section 377 unnecessary for that purpose), the measure also has the effect of excluding the LGBT peoples, thereby violating their fundamental rights. Therefore, it is my opinion that Misra C.J. read in a crude disparate impact analysis into the classification test, albeit without using the same words. Elsewhere on this blog, Gautam has analyzed how Chandrachud J.’s critique of the classification test recognized indirect discrimination for the first time in Indian equality jurisprudence. Navtej has been celebrated for several reasons – expanding our understanding of equality and its jurisprudence should be one of them.

Guest Post: Sub-Classification in Reservations – II

[This is a guest post by Abhinav Chandrachud.]


In State of Punjab v. Davinder Singh (27 August 2020), a Constitution Bench of the Supreme Court headed by Justice Arun Mishra recently referred E.V. Chinnaiah v. State of AP, (2005) 1 SCC 394, to a larger bench for reconsideration. In Chinnaiah, the court had held that governments cannot introduce a special sub-quota, within the SC and ST quota, in favor a few castes or tribes who are more backward than others on the list. Davinder Singh’s judgment now disagrees with this view but raises some interesting questions.

A sub-quota for OBCs:

In 1962, the State of Mysore issued an order reserving 50% of seats in medical and engineering colleges for OBCs. Within this 50% quota, 22% of seats were reserved for those OBCs who were “more backward” than others. Communities which were far below the average educational levels of the state were entitled to opt for the “more backward” sub-quota. In M.R. Balaji v. State of Mysore, AIR 1963 SC 649, a Constitution Bench of the Supreme Court held that this sub-classification of OBCs into backward and more backward was impermissible. The court said that Article 15(4) of the Constitution only allows reservation for the “really backward classes”, while Mysore had given reservations to nearly 90% of its population by including not-so-backward communities in the list of OBCs. However, relying on Justice Chinnappa Reddy’s eloquent judgment in K.C. Vasanth Kumar v. State of Karnataka, (1985) Supp SCC 714 (paragraph 55), the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217, held that sub-classification was permissible among OBCs (Justice B.P. Jeevan Reddy- paragraphs 802, 843; Justice P.B. Sawant – paragraph 524). In other words, governments are now free to create sub-quotas within the OBC quota.

“Disturbing” the presidential lists:

In Chinnaiah, the Supreme Court was considering the constitutional validity of the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000. Under Article 341 of the Constitution, the President notifies a list of Scheduled Castes for each state, which can thereafter only be modified by Parliament. The State of Andhra Pradesh divided this list into four categories, and conferred separate quotas on each group based on their inter se backwardness – Group A (1%), Group B (7%), Group C (6%), Group D (1%). The Supreme Court said that the state government could not do so. There was only one presidential list of SCs for the entire state, and since the government of Andhra Pradesh could not add or remove a caste from the list, it could not allot separate sub-quotas to various castes in the list either.

Relying on Ambedkar’s speech in the Constituent Assembly, the Supreme Court in Chinnaiah hinted that if governments are given the power to sub-classify within the list of SCs specified by the President under Article 341, they might do so for political reasons – e.g., by conferring a generous sub-quota on a numerically large and politically important SC caste, to the exclusion of others. The court said that the object of Article 341 was to eliminate political factors in the identification of SCs, and the government had no power to “disturb” the presidential list. It was held that the SCs and STs specified in their respective lists form a class by themselves, and regrouping or reclassifying them violates the Constitution.

However, as a previous post on this blog argues, the problem with Chinnaiah was that it treated the entire list of SCs in a state as a homogenous category and presumed that each caste within the list was as backward as the other SCs. The court in Davinder Singh later noted that this was simply not true. There are several castes included within the presidential list of SCs in a state, but some of them may be ahead of others. Chinnaiah did not allow governments to take this into account and introduce sub-quotas for the more backward SCs and STs.

Enter Davinder Singh:

In State of Punjab v. Davinder Singh (2020), the Supreme Court was called upon to examine the validity of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The law created a sub-classification within the SC community and said that 50% of the SC quota would go to the Balmikis and Mazhabi Sikhs in Punjab. In 2014, a bench of three judges of the court opined that Chinnaiah needed to be reconsidered by a larger bench. Now, a bench of five judges in Davinder Singh has asked for the case to go before an even larger bench.

The court relied on the 102nd amendment to the Constitution, passed in 2018, which introduced Article 342A into the Constitution. This provision says that the President must, in consultation with the Governors, prepare a list of socially and educationally backward classes (SEBCs) for each state, a list which can thereafter only be modified by Parliament. Reading this amendment, the Supreme Court said that the constitutional provisions which deal with identifying SCs, STs and SEBCs (i.e., Articles 341, 342 and 342A) are now “pari materia” – each group has a constitutionally recognized list which can only be modified by Parliament, and therefore, the court cannot disallow sub-classification within the SC and ST lists on the one hand, while allowing it in the SEBC list on the other. Instead, held the court, governments can use rational criteria to create a sub-quota within the SC or ST list as well.

The Implications of Davinder Singh

However, the Davinder Singh judgment of the Supreme Court raises some important questions:

Firstly, does Davinder Singh dilute M. Nagaraj v. Union of India, (2006) 8 SCC 212 and Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396? In Nagaraj and Jarnail Singh, a Constitution Bench of the Supreme Court had held that before the government introduces any reservations for communities other than SCs and STs, it must collect quantifiable data which show that those communities are, in fact, backward. No such data collection exercise is necessary for SCs and STs who are presumed to be backward once they are included within the lists under Articles 341 and 342 of the Constitution. After Davinder Singh, a view may be taken that once a community is set out in the list of SEBCs under Article 342A of the Constitution, it too is presumed to be backward and no such data collection exercise is thereafter necessary to show that the community continues to be backward.

Secondly, in the recent Maratha reservations case [Dr. Jishri Patil v. Chief Minister of State of Maharashtra, (2019) SCC Online Bom 1107 (paragraph 110)], a Division Bench of the Bombay High Court had held that Article 342A(2) contemplates two lists of SEBCs – a central list and a state list, and that the state list of SEBCs is unaffected by the amendment. In other words, Article 342A only applies to the central list of SEBCs – state governments are free to prepare and modify their own list of SEBCs. If this is correct, then Article 342A is not “pari materia” with Articles 341-342, contrary to what was held in Davinder Singh. There is no separate central and state list of SCs and STs. On this interpretation of Article 342A, the Chinnaiah court would have reasoned that sub-classification is permissible within the state list of SEBCs, but not in the central list under Article 342A, because states are free to modify their own lists of SEBCs, but not the central list constitutionally prepared by the president. The court in Davinder Singh has not taken these arguments into account.

Thirdly, the judgment in Davinder Singh seems to have said that sub-classification within the list of SCs and STs should only be carried out by state legislatures, not by the executive government. It has been a well-settled principle of constitutional law, since Indra Sawhney’s case, that reservations can be brought about not merely through legislation but also by executive order. In Indra Sawhney, the Supreme Court mostly upheld an executive order which gave effect to the Mandal Commission report. However, in paragraph 43 of the Davinder Singh judgment, the Supreme Court has said that state legislatures are competent to create sub-classifications within the lists of SCs, STs and SEBCs. Did the court mean to say that sub-classification is not permitted by executive order? This may need clarification.

Finally, it is also now perhaps time for us to reconsider whether a judgment can only be overruled by a bench of larger strength. Look at the time that has been wasted in constituting larger benches in this case. A three-judge bench opined in 2014 that Chinnaiah needed reconsideration. A five-judge bench has, in August 2020, agreed and asked for a reference to an even larger bench. Will it take another six years for the larger bench to overrule (or uphold) Chinnaiah? In a system afflicted by backlog and delay, this is a rule that we can easily do without. It makes little sense – a bench of 7 judges can, by a slim 4-3 majority, overrule a unanimous judgment of five judges. In other words, four judges (in a 7 judge bench) can overrule the unanimous opinion of five judges in Chinnaiah. When a case has been decided by five or more judges, there is no reason why a bench of coordinate strength should not be able to overrule it.

Guest Post: Sub-Classification in Reservations

[This is a guest post by Anuna Tiwari.]


Contemporary debate around reservations has turned inwards, from reserved-versus-non-reserved, to one within the reserved communities. Several state Acts and fact-finding commissions have voiced the need for sub-classification and sub-categorization within the reserved SCs to account for their inherent gradations. One such Act by the Andhra Pradesh Government was held unconstitutional in the Supreme Court’s decision of EV Chinnaiah vs State of Andhra Pradesh (2005 1 SCC 394). Another such law has now been put to review by a larger bench of the Supreme Court by a Constitution Bench on 27th August 2020 in State of Punjab vs Dalvinder Singh.

The Supreme Court in EV Chinnaiah examined the Andhra Pradesh (Rationalization of Reservation) Act which dealt with such a conflict between sub-castes in Andhra Pradesh. The Andhra Act had bifurcated the Presidential list into four groups and had apportioned the 15% quota among them on the basis of degree of backwardness and proportional population of each sub-caste. The state argued that reservations in the state were unduly benefitting only a handful of the SCs who were relatively advanced, at the cost of the most deprived within them. The Supreme Court had held that the said sub-classification was unconstitutional as the SCs were a class by themselves, classified sufficiently (as such for the purpose of Article 14) under Article 341, and that the sub-classification could only be made by the Parliament under Article 341(2).

In Dalvinder Singh the issue of sub-classification has resurfaced. Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act 2006 provided that 50% of the total seats reserved for the Scheduled Castes be offered to Balmikis and Mazhabi Sikhs. This was challenged on the basis of the Supreme Court’s decision in EV Chinnaiah, before the Punjab & Haryana High Court which deemed it unconstitutional. In appeal, the Supreme Court has now held that (i) the state could provide preference to a class within the Scheduled Class/ Scheduled Tribe (¶ 48) ; that (ii) allotment of specific percentage out of the reserved seats  would not violate Article 341, 342 and 342A and that (iii) a federal structure put both the State Legislature and the Parliament under a “constitutional directive” for the upliftment of the SCs/ STs and backward classes (¶49). The Court has referred the matter to a 7-judge bench, endorsing the view that the EV Chinnaiah was at variance with the realities of the community.

Among the foremost critiques of EV Chinnaiah is the Supreme Court’s off-the-mark perception of the Scheduled Castes as a “homogenous” group. The Court had observed that they were a homogenous group incapable of being further sub-divided, much less by the State Legislature. Dalvinder Singh (inter-alia) by taking note of the massive anthropological and empirical data pointing to anything but homogeneity, has overcome this perception for the better.

It is a welcome move so far as the Court acknowledges that the states are entitled to account for social realities (¶38,47) and that sub-classification is just as much as facet of equality and social justice as reservations themselves (¶44) .

The “guise of homogeneity” 

In Dalvinder Singh, the Court rectifies the EV Chinnaiah Court’s reluctance to engage with the Ramachandran Raju Commission report and its findings. Justice Sinha had in EV Chinnaiah declared the redundancy of the report stating:

“It may not be necessary for us to delve deep into the question as to whether the factual foundation for enacting the said legislation being based on a report of a Court of Inquiry constituted under Section 3 of the Commission of Inquiry Act 1952 known as Justice Raju Report is otherwise laudable or not.” (¶65)  

In Dalvinder Singh, the Court comes to terms with the various factual reports carrying empirical evidence of inequality among the SCs. As they say, a problem well stated, is problem half solved. The statement of the issue itself duly acknowledges the relevance of these reports.

“Whether the action based on intelligible differentia to trickle down the benefit can be said to be violative of Articles 14 and 16 of the Constitution and whether sub-classification can be said to be an act of inclusion or exclusion particularly when various reports indicating that there is inequality inter se various castes included within the list of Scheduled Castes”. (¶29)  

Vis-à-vis the rest of the society, the degree of contempt for some sub-castes is greater than the rest. Further, internal schisms both mimic and amplify such prejudice. For instance, the Sadashiv Commission found that while some among SCs (touchable) reside alongside the upper dominant castes, some among the SCs continue to live in the peripheries of the villages and are deemed polluted by the other SCs. In Andhra, though both Malas and Madigas reside in the periphery of the village, there is hierarchy in “marginality”: the Madigas (ritually lower) are farther away from the main village than the Malas. The occupation of Malas (weaving and agriculture labour) were deemed cleaner than those of the Madigas (leather tanning, show making etc.) The notions of impurity on the basis of occupation can be seen (with somewhat equal, if not greater intensity) within the SCs. The reform movement leadership of Andhra was heavily under-representative of the Madigas: less than a dozen among the 130 Malas. In the data available from 2001 census, Adi-Andhras, another economically forward group,  showed education level of a 6.3 as against a 2.7 of Madigas, the average among SCs overall being 3.7. The 2011-Census state-wise data set on literacy and educational attainments of around 600 SC groups reveals that there is variance within the SCs. While 11% held a degree in one quarter of the SCs, only 2% of the other quarter had a degree. The Supreme Court, is itself not an absolute stranger to the nature of SCs under the Constitution and has in the past recognized the SCs as an “amalgam” rather than an immutable whole (NM Thomas vs. State of Kerala, 1976 AIR 490).

How much can be left to the “subjective satisfaction” of State

The Chinnaiah Court’s perception of homogeneity is flawed. But the greater issue is the Court’s treatment of factual reports in reservation cases. After Jarnail Singh vs Lachhmi Narayan Gupta, quantifiable data is not a pre-cursor to reservations (in promotions) (Jarnail Singh ¶21).  And apparently, after Mukesh Kumar vs State of Uttarakhand, affirmative action turns on states’ ‘subjective satisfaction’. The Supreme Court in EV Chinnaiah had looked the other way on considerable empirical evidence, thereby questioning the states’ prerogative to act on the same. However, the Court in Mukesh Kumar Gupta held that “inadequacy of representation is a matter within the subjective satisfaction of the State” and that the State could very well rely on “material it has in its possession already or [that] it may gather such material through a Commission/ Committee, person or authority(¶12). Here the Court held that while the State could choose to act on such material, it could not be compelled to do so since Article 16(4) is merely an enabling provision. This reasoning sets us back in time to the pre-NM Thomas days where Article 16(4) was considered an exception to equality. It also tells us why ‘subjective satisfaction’ is a double-edged sword, even though it may appear desirable in an expansionist context like EV Chinnaiah’s.

Clearly, what the states make of “subjective satisfaction” is not uniform. While Andhra Pradesh and Punjab expanded the scope of reservations to reflect social realities, the Uttarakhand Government instead decided to rule out reservations in all posts in public services in the overlooking the data on their backwardness. Therefore, the Court’s push to state action based on statistical data in Dalvinder Singh is desirable. The outcome of the reference should infuse greater consistency and certainty on the state’s obligations to act on such data.   

Over-broad reading of Article 341(2) by EV Chinnaiah. 

EV Chinnaiah’s discontents go beyond misplaced notion of homogeneity. Another argument against the Andhra Pradesh Act was that constitutional intention behind Article 341 forbade sub-classification by the state legislature (EV Chinnaiah ¶22). Justice Santosh Hegde observed that the Scheduled Castes come into existence only by virtue of the Constitution and the exclusive power to include or exclude from, and thereby to sub-classify the presidential list vests solely with the Parliament.

Justice Hegde cited Dr. B.R. Ambedkar who had once said that power is vested in the President to guard against the “political factors having a play in the matter of disturbance in the schedule so published”. He further read this “disturbance” widely to mean not just inclusion and exclusion from the presidential list, but also re-classification:

“Therefore any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of scheme of the Constitution and will be violative of Article 341 of the Constitution.”

It is difficult to understand this extrapolation (read: re-writing) of a plain-worded provision. Article 341(2) only deals with inclusion and exclusion from the list rather than inter se sub-classification of the enlisted groups. Also, nothing in the context of his statement suggests that Dr. Ambedkar had sub-classification or re-arrangement, re-classification in mind. As Dalvinder Singh clarifies only now, sub-classification does not amend the list in any way (¶45,49).

Justice Hegde’s reading of Article 341(2) assumes greater importance since it is employed to set off a Part III claim. The doctrine of reasonable classification is conspicuous in its absence and its non-application goes unexplained. This is a limitation that the Court imposes on itself by ignoring the Commission’s findings of internal social, educational and economic divisions between SCs in Andhra Pradesh, (belittling them as ‘micro-distinctions’). The Court in Dalvinder Singh discards this reading of Article 341(2) and clarifies that sub-classification could be done within the lists without attracting Article 341(2) (¶48).

The case for sub-classification

The administrative definition of SCs under Article 366(24) states that those castes, groups, races, tribes and communities that are grouped under Article 341 by the President of India are scheduled castes for the purpose of the Constitution (The Constitution of India 1950, Article 366(24)).  Socially, SCs are categories of people who were at the bottom of the Indian society owing to their low status in the ritual hierarchy and their spatial-cultural isolation from the society. The Constitution identifies SCs on the basis of “untouchability”. The first census tests for identification revolved around incidence of disability such as debarment from using temples, polluting touch, occupational disability etc. The 1950 Scheduled Order took educational and economic criteria as indicators of inclusion into the list. Presently, “social, educational and economic backwardness” arising out of traditional untouchability is used as the primary indicator of inclusion in the presidential list. Since the criteria of distinguishing SCs (as a whole) is untouchability and relative impurity- based on occupation, residence, ritual status, eating habits etc., relative impurity among the Dalits assumes importance. If the same ritual untouchability persists within the SCs, it should adequately justify sub-classification- not as an exception but as an extension of the entitlement.

Both historical and contemporary factors indicate unequal access to education and distinct positions in the social hierarchy. Neither of these is a “micro-distinction” (as EV Chinnaiah calls them in ¶57) simply because the exact same markers of discrimination are rampantly employed in segregating the SCs from the rest as stated above. The internal segregation is not wiped out by “shared-status” feeling. If the former has pre-existed the Constitution, the latter cannot be magically conjured, notwithstanding constitutional classification. The SCs are heterogeneous and unequal. Failing to classify unequals violates Article 14 (K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552) 

Reservations emerge in response to “entrenched and cumulative nature of group inequalities” and thus accrue to the SCs on the basis of their group-identity ascribed at birth and inseparable from their beings (Marc Galanter, Competing Inequalities, Page xxv). Dalvinder Singh (barring its use of the term “largesse”)( ¶42) holds the mirror up to EV Chinnaiah on this very crucial aspect. EC Chinnaiah’s “justice to one group at the cost of injustice to another group” line of reasoning tends towards the notion of ‘justice’ championed by those opposing reservations in general. K Balagopal in his scathing critique of the judgement termed it as an argument against reservations, rather than just sub-categorizations. He laments that “at the end what we have is a judgement purportedly against subdivision of the scheduled caste reservation quota, but which is in fact replete with arguments against reservations as such.”  Dalvinder Singh’s rooting of sub-classification in the same principle as reservation itself (¶44) is thus a long overdue moral contrast.

Conclusion: Imposed homogeneity and Creamy layer exclusion must meet half-way.

EV Chinnaiah disallows sub-classification without engaging with the reasonable classification argument. Jarnail Singh on the other hand justifies creamy layer exclusion of the SCs. Both are extreme approaches. Jarnail Singh glorifies the capacity of reservations to wipe-out social disability. It conflates group-disability and an individual’s attainment of a certain advancement. Exclusion from reservation cannot wipe out persisting social disability, and cannot be the ideal. Nearly 60% reserved positions in the Central Governments and Ministries lie vacant as in March 2020. Glaring vacancies in the reserved positions across cadres and institutions indicate problems with this exclusion. If some are excluded and the rest are socially incapacitated (in the absence of sub-classification), the optimum representation would elude us. Reservation must come to the downtrodden sub-castes, not at the cost of, but alongside the rest of the sub-castes.

Special quotas can be created to counter extreme disability, like those for Arunthathiars. The Tripura High Court had in 2015 ordered filling up of vacant positions by general candidates in the absence of a SC candidate. This is undesirable if representation is to be ensured. Rather than fixed quotas, vacant reserved positions are better preserved by a preference-based layering model. There could be layering of the groups preferentially in an order of decreasing level of social disadvantage, the most disadvantaged sub-category being the most preferred. In the absence of any candidate from a sub-category higher on the preference order, only a candidate from the next preferred sub-category could fill in. Rather than the fixed apportionment-quota model (as adopted by the Andhra Pradesh Act), the layering model would ensure that the vacancy is retained within the reserved fold, while the most marginalized sub-category’s disadvantage is partly offset by the preferential order.

The EV Chinnaiah bench’s reluctance to sub-categorise closely resembles that of the central government in categorising the SCs, apprehending that the “official recognition of their low-ness” would perpetuate discrimination (Indian Statutory Commission 1930:V, 1341 as cited in Marc Galanter, p. 122). Both the fears, facially salubrious, presume homogeneity and that caste-consciousness would do more harm than caste-blindness in the law.  The courts may be limited in their power to formulate rights-based policy, they are extremely potent in mobilizing the claimants, enlarging the scope of their claims and  triggering state action: Vishakha is a case in point. Until notions of caste and impurity persist, we can neither (like EV Chinnaiah) treat distinct groups as one, nor (like Jarnail Singh) discount prejudice against group identity and exclude individuals. Extensive empirical data already at the disposal of the state must not go to waste and a middle way must be found. The Supreme Court in Dalvinder Singh thus expiates for opportunity that it lost in EV Chinnaiah and sets the debate on this middle path, rolling again (¶39).


[The author thanks Professor Aparna Chandra for comments on a draft of this piece.]

Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]


Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.

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

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


[This is a guest post by Krishnesh Bapat.]


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

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

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

BACKGROUND

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

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

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

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

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

CONCERNS

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

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

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

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

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

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

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

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

 

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

CONCLUSION

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

To CAP or not to CAP: The Bombay High Court on Equality and Access to Education

In an interesting judgment delivered yesterday (Yash Pramesh Rana vs State of Maharashtra), a Full Bench of the Bombay High Court struck down Government Resolution [“GR”] dated 27.2.2013. This Government Resolution had restricted the application of a fee-reimbursement scheme only to those SC/ST/OBC students who had taken college admission through the government-run Common Admissions Procedure [“CAP”].

The facts were straightforward. To enter an engineering college in the state of Maharashtra, a student had to undertake the Common Entrance Test [“CET”]. On the basis of ranks obtained in the CET, students could then participate in the CAP, and gain admission into any of the colleges that were part of the CAP. However, not all colleges – including some minority colleges (the case itself concerned a Gujarati-language linguistic minority college) – were part of the CAP. Certain colleges had their own admissions process, that was approved by the Pravesh Niyantran Committee. The impugned GR – as indicated above – provided for a fee-reimbursement scheme to SC/ST/OBC students, but limited it only to the former category (i.e., those who took part in the CAP).

In a judgment authored by Dama Seshadari Naidu J., the Bombay High Court found that the impugned G.R. was entirely arbitrary, and violated Article 14 of the Constitution. The judgment is noteworthy, because it was decided almost entirely on the basis of a textbook application of burdens and evidentiary standards under Article 14. The Court observed that as the impugned G.R. created a classification, and disadvantaged one set of people (the category of students that was not granted fee reimbursement), a prima facie case of discrimination was made out. This, then, shifted the burden of justification onto the State. The State essentially produced two arguments: first, that extending the free-reimbursement scheme to all SC/ST/OBC students would be financially prohibitive, and secondly, that students who had gone through the CAP and those who had not constituted two separate “classes”, as the CAP was a transparent, well-documented, well-regulated, and non-discriminatory process of allocation.

On the first count, the Court held that mere financial difficulties, without something more, could not be a ground for discriminatory treatment. In other words, in a class of similarly situated people, the State could not refuse to one set of people a benefit that it was granting to another, on the basis that it did not have the financial capacity. This is self-evidently correct and logical. On the second count, the Court held that the State had failed to bring any evidence on record to show that the non-CAP process was any less rigorous and transparent than the CAP process, in any sense that justified withholding of identical benefits. Indeed, the Pravesh Niyantran Committee was also run by the government. Consequently, as the State had produced no evidence to justify its claim, the impugned G.R. was arbitrary and unconstitutional. As the Court correctly noted, following the US Supreme Court, the presumption of constitutionality would not stretch so far as to imagine the existence of an “undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation.”

It is also interesting to note that Naidu J. framed the dispute within the backdrop of historical inequalities concerning access to education in India (going back to the 1850s), and the use of affirmative action as tool of corrective justice. This was relevant to the case, as one of the arguments raised by the State was that fee-reimbursement was simply a benefit it was conferring upon certain students; as there was no antecedent right to claim fee-reimbursement, a person who had been deprived of it had no locus to move the Court. Now at one level, of course, the Court correctly answered this by stating that any State action – including “largesse” – had to conform to constitutional principles. However, the Court also noted that – within the backdrop of structural inequality in India – fee-reimbursement for SC/ST/OBC students had to be understood as “a facet of affirmative action.” This immediately took it from the domain of largesse/benefits and into the domain of constitutional obligation, thus making it even more incumbent upon the State to frame a non-discriminatory policy of access.

Now, an interesting corollary of the Court’s observation is that if indeed fee-reimbursement is a form of affirmative action, then – as a non-reservation based form of affirmative action – it falls within Article 16(1) of the Constitution (guarantee of equality of opportunity). This raises a host of fascinating questions for the future, including whether specific claims of fee-reimbursement can be made against the State by socially disadvantaged communities (as 16(1) is framed as a right), the fact that such schemes can go beyond SC/ST/OBC communities (as 16(1) affirmative action measures are not limited to 16(4) beneficiaries), and so on. Of course, none of these questions were before the Court; however, it will be interesting to see whether future judgments will carry forward the logic of fee-reimbursement being a form of affirmative action, and what that might mean in practical terms.

Guest Post: Rethinking “Manifest Arbitrariness” in Article 14: Part II – Disparate Impact and Indirect Discrimination

[This essay, a Guest Post by Dhruva Gandhi, is the second in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation. The first part of the series is available here.]


Previously, along with Sahil Raveen (here and here) I have critiqued the use of manifest arbitrariness by Nariman J. in Hindustan Construction and Essar, stating how the use of the doctrine meant that the Supreme Court effectively usurped the mandate of Parliament and showing how the decision-making of the court itself was arbitrary. Commenting on the same doctrine, Naniwadekar seems to suggest that the scope of the doctrine should be confined to administrative law and we adopt a deeper understanding of the classification test. The doctrine ought not to be used to strike down statutes. However, the point remains that the doctrine of manifest arbitrariness is now a part of positive law and can be used to strike down statutes as well. Therefore, it is imperative that we find a way to make the doctrine workable that does not see the Supreme Court make policy decisions. With that objective, I look at Navtej Johar and show how the adoption of the doctrine of manifest arbitrariness by the Constitution Bench was actually an application of the concept of disparate impact or indirect discrimination. While I am not saying that ‘manifest arbitrariness’ must be equated with ‘disparate impact’, it could help us provide some meaning to the doctrine and limit its scope.

The Concept of Indirect Discrimination

‘Indirect Discrimination’ or ‘Disparate Impact’ has been adopted in different forms in various jurisdictions the world over. In the United States, the concept of indirect discrimination was initially spelled out in Griggs v Duke Power Co. as:

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. (emphasis supplied)

Cutting across the Atlantic, several decades later the Equality Act, 2010 in the United Kingdom defined indirect discrimination as,

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Definitions such as these can be multiplied and there do appear to be certain nuances that differentiate them. For the moment, I do not wish to delve into those. A common understanding of these definitions seems to be that when a facially neutral measure has or may have a disproportionately adverse impact on persons who belong to certain protected/vulnerable groups, the measure would be indirectly discriminatory or disparate in its impact.

History of Disparate Impact in India

While there has not been much of a discussion of indirect discrimination in India, there have been a few instances when this concept has been applied. For instance, when examining the constitutional validity of a section in the Hindu Marriage Act, 1955 that provided for a decree of restitution of conjugal rights, the Andhra Pradesh High Court said that such a section irretrievably alters the life of a wife while not having any such impact on the husband. It is the wife who has to beget a child and the practical consequences of such a decree would cripple her future plans. More recently, the Delhi High Court examined the validity of a practice in the Northern Railways where medical insurance was denied to those family members of an employee whose names had been struck off by that employee. The court said that even a facially neutral decision can have a disproportionate impact on a constitutionally protected class. In this case, the disproportionate impact was on women and children. Barring these and a few other instances though, there has been no explicit recognition of ‘disparate impact’ in India by the Supreme Court. Bhatia argues that Anuj Garg v Hotel Association of India could be a precedent to say that the effect of a measure must be observed to see its discriminatory nature, but as he himself concedes this case involved a directly discriminatory provision.

‘Manifest Arbitrariness’: A Finding of Disparate Impact.

With this background of indirect discrimination and its application in India, I now wish to turn to the case which adopted the doctrine of manifest arbitrariness as a doctrine that can be used to strike down a statute- Navtej Johar v Union of India. While it was first discussed by Nariman J. in Sharaya Bano v Union of India, there appears to be a lack of clarity on whether his opinion on that point was supported by a majority. Instead, writing previously on this blog, Abhinav Chandrachud has shown how the judges in Navtej adopted this doctrine as a tool that can be used to invalidate statutes.

The provision in contention in Navtej– Section 377 of the Indian Penal Code, 1860 was a facially neutral provision. It did not directly discriminate on the basis of sexual orientation. Instead, it potentially covered within its ambit, consensual and non-consensual homosexual intercourse, consensual and non-consensual heterosexual intercourse other than penal-vaginal intercourse and sexual intercourse with animals. Therefore, Section 377 was discriminatory in its operation. It had a disproportionate adverse impact on a vulnerable group- consenting homosexual adults. It is in this context that the four opinions in this case need to be studied.

The Opinion of Misra J: Parallels with Ladele

Misra C.J. (speaking for himself and Khanwilkar J.) said,

237. Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even ‘consensual acts’, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owing to some inherent characteristics defined by their identity and individuality, have been woefully targeted. This discrimination and unequal treatment meter out to the LGBT community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Constitution…

.. 239. In view of the law laid down in Shayara Bano (supra) and given the fact that Section 377 criminalises even consensual sexual acts between adults, it fails to make a distinction between consensual and non-consensual sexual acts between competent adults. Further, Section 377 IPC fails to take into account that consensual sexual acts between adults in private spaces are neither harmful nor contagious to the society. On the contrary, Section 377 trenches a discordant note in respect of the liberty of persons belonging to the LGBT community by subjecting them to societal pariah and dereliction. Needless to say, the Section also interferes with consensual acts of competent adults in private space. Sexual acts cannot be viewed from the lens of social morality or that of traditional precepts wherein sexual acts were considered only for the purpose of procreation. This being the case, Section 377 IPC, so long as it criminalises consensual sexual acts of whatever nature between competent adults, is manifestly arbitrary.

The opinion of Misra CJ. on the point of manifest arbitrariness was not merely an instance of the court commenting on the policy decision of the legislature and disagreeing with it. Instead, the opinion first notes how the effect of the provision is important because it covers consensual sexual activity. Second, this effect was on a vulnerable group of individuals who shared a common immutable characteristic. Third, this effect had a disproportionately adverse impact- it subjected homosexual individuals to social stigma and even interfered with their privacy. Lastly, the opinion shows how the discriminatory effect came to be- by treating alike those who ought to have been differently. Therefore, it is the disparate impact (see the words, ‘this being the case’) of a neutral measure that made it manifestly arbitrary.

Misra J.’s reasoning is similar to that of English Court of Appeal in Ladele v Islington BC. Ladele, the applicant in that case was a marriage registrar employed by the Islington Borough Council who refused to perform civil partnership proceedings because she believed they were contrary to the will of God. She was then subjected to disciplinary proceedings where she pleaded indirect discrimination on the grounds of religion. While the proceedings were held to be justified, the claim of indirect discrimination was accepted in the following terms,

There is no doubt but that Islington’s policy decisions to designate all the registrars civil partnership registrars, and then to require all registrars to perform civil partnerships, put a person such as Ms Ladel, who believed that civil partnerships were contrary to the will of God, ‘at a particular disadvantage when compared to other persons’, namely those who did not have that belief.

Therefore, it was the failure to distinguish between civil registrars who had a religious belief and those who did not that lead to indirect discrimination as per Neuberger LJ, much like Misra J.

Opinion of Chandrachud J.: Parallels with Mandla v Lee

Similarly, consider the opinion of Chandrachud J.,

Section 377 is based upon a moral notion that intercourse which is lustful is to be frowned upon. It finds the sole purpose of intercourse in procreation. In doing so, it imposes criminal sanctions upon basic human urges, by targeting some of them as against the order of nature….It would have human beings accept a way of life in which sexual conduct without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large….

Even behaviour that may be considered wrong or unnatural cannot be criminalised without sufficient justification given that the penal consequences that follow. Section 377 becomes a blanket offence that covers supposedly all types of non-procreative ‘natural’ sexual activity without any consideration given to the notions of consent and harm.

In Chandrachud J.s’ opinion too, it is the ‘discriminatory effect’ of Section 377 that is tied to a finding of manifest arbitrariness. The words ‘section of our citizens’ in this paragraph are important. When seen in light of the definition that the Equality Act, 2010 in the United Kingdom offers for instance, they show how persons sharing a protected characteristic- ‘homosexuality’ as their sexual orientation- are disadvantaged as compared to those who do not. Chandrachud J.’s reasoning is also similar to the approach adopted by the Andhra Pradesh High Court where the effect on women was observed.

A parallel instance in the United Kingdom furthers this point. In Mandla v Lee, the House of Lords held that a school had unlawfully discriminated against a Sikh student by excluding him from school when he refused to take off his turban. The school had a rule which required boys to come bare-headed to school. While the rule was apparently neutral and applied equally to all students, it was recognised as wanting conformity to a Christian way of dressing and thus, creating barriers for other religions. Chandrachud J. similarly culls out the barriers created to homosexual intercourse by necessitating conformity to a notion that finds the sole purpose of intercourse in procreation.

Even the concluding portions of paragraph extracted above might take a different colour in this light. A differentiating factor between direct and indirect discrimination in the United Kingdom, for one, is that indirect discrimination can be justified whereas direct discrimination cannot. Even in the United States, a measure with a disparate impact is proscribed under Title VII unless it is shown to have some business necessity. Similarly, Chandrachud J.’s opinion says that a provision cannot have a discriminatory impact unless there is a ‘sufficient justification’.

Admittedly, there is an alternate broader interpretation that can be conferred upon this opinion. It can be read to mean that the Supreme Court can sit in review over the merits of criminalisation and de-criminalise a measure unless sufficient justification comes forth. This broader interpretation though, strikes at the separation of powers between the judiciary and the legislature. Analysing the concluding portion of the excerpt in light of an understanding of disparate impact offers a narrower interpretation that is in conformity with the separation of powers. This interpretation is also buttressed by the fact that Chandrachud J. himself finds Section 377 to be an instance of indirect discrimination under Article 15 as well. It may seem odd that he finds the same statute to be an instance of indirect discrimination under Article 15, but I will comment on that a little later.

Malhotra J: Some semblance of Disparate Impact

Moving then to the opinion of Malhotra J.:

Section 377 insofar as it criminalises consensual sexual acts between adults in privates, is not based on any sound or rational principle, since the basis of criminalisation is the ‘sexual orientation’ of a person, over which one has ‘little or no choice’.

Further, the phrase ‘carnal intercourse against the order of nature’ in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.

Thus, apart from not satisfying the twin-test under Article 14, Section 377 is also manifestly arbitrary, and hence, violative of Article 14 of the Constitution.

At the outset, this opinion does not seem to link manifest arbitrariness with disparate impact as neatly as the opinions of Misra CJ. and Chandrachud J. did. However, Malhotra J. has identified that in its operation, Section 377 impacts a vulnerable group defined by an immutable personal characteristic and that this impact is adverse in nature (criminalisation of consensual sexual activity and harassment caused by misuse of criminal law). Therefore, this opinion too looks at the discriminatory operation of an otherwise neutral measure and this discriminatory operation is one reason for the provision to be manifestly arbitrary. To this extent, it shares a common denominator with the opinions of Misra CJ. and Chandrachud J. The second reason, namely, the absence of a sound and rational principle is not in common with those opinions.  However, the material fact is that four out of the five judges found Section 377 to be manifestly arbitrary because it had a disparate impact.

Nariman J. found the provision to be manifestly arbitrary because it was based on a capricious and irrational principle, namely, the fact that gay persons suffer from a mental disorder and ought to be penalised. To this extent, in my opinion, Nariman J. would be in the minority.

According to me, this reading of Navtej Johar seems to suggest that a statute is manifestly arbitrary when it has a disparate impact. Reading it in this way would have some direct, tangible benefits. First, it would militate against what Timothy Endicott terms arbitrary decision making by judges citing the doctrine of arbitrariness and to that extent, preserves the rule of law. Second, it might sanction the incorporation of the concept of disparate impact or indirect discrimination in India. While some have argued that Navtej was a precedent for indirect discrimination even otherwise (here and here), I disagree with these opinions. These opinions seem to rely on the observations made by Chandrachud J. in the context of Article 15(1). However, this was only the opinion of one judge and not the ratio. Therefore, there is some merit to unearthing the use of manifest arbitrariness.

Controversy

Nevertheless, this understanding of ‘manifest arbitrariness’ in Navtej unpacks a set of issues as well. The first is that the application of ‘manifest arbitrariness’ in Navtej is not in sync with its application in Joseph Shine, another Constitution Bench decision. This criticism is fairly true, but one could say that the different opinions in Joseph Shine only applied the test laid down by Nariman J in Sharaya Bano. None of them tried to find a common minimum denominator to Navtej’s application of manifest arbitrariness, the first decision which technically incorporated this doctrine.

A second objection could be that the judges in Navtej applied or at least cited the test quoted by Nariman J. in Sharaya Bano and that disparate impact does not appear to be the sequitur of that opinion. Nariman J., in Sharaya Bano collapsed legislation and delegated legislation for the purposes of Article 14 and said that the doctrine of manifest arbitrariness would apply to both. After that, he said:

Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

In fact, even the Delhi High Court in Harsh Mander v Union of India did something similar. Delivered a month before Navtej and dealing with the constitutionality of the Bombay Prevention of Begging Act, 1949, the court applied manifest arbitrariness in the following manner:

It is our view that law does not make any distinction between types of begging i.e. voluntary or involuntary as has been urged by the petitioners. The absence of any such distinction exposes the statute to a judicial evaluation on the ground of being arbitrary.

On the contrary, the comprehensiveness of the definition of begging in Section 2(1) (i), appears to indicate a legislative intent to cover a broad area, including in its sweep, all types of begging. It has also been pointed out that the respondents are using homelessness and begging synonymously and are in fact detaining the homeless as if they were begging and implementing the penal provision of the act qua them.

This in our view is manifestly arbitrary.

… As a result of the detention of the bread earner of the family, the entire family may be reduced to financial deprivation and penury. Such can never be the object, spirit and intendment of a welfare state by way of what is touted as a social benefit legislation.

The first reason to find the law arbitrary was in response to a contention of the petitioner within the classification framework. It is the second reason that is more interesting. The petitioners contended that 74% of those arrested belonged to the informal labour sector and 45% of those arrested were homeless. It is in response to this contention that the court says that the State was treating homelessness and begging synonymously. What the court thus found was a disproportionate impact on a vulnerable group- the homeless. The disadvantage caused to them was that they were detained and even exposed to criminal sanction. Not to mention, their families were pushed into penury as a consequence. Therefore, the finding of manifest arbitrariness was contingent on a finding of disproportionate impact.

The disproportionate impact becomes clearer when we compare this to DH v Czech Republic, heard by the ECtHR, where a claim of indirect discrimination was upheld. This was a case where ‘psychology tests’ were administered to determine whether or not children should go to special schools, which were in practice undemanding and inferior. Statistics showed that these tests had a disproportionate impact on Roma students, who were over-represented in special schools. Similarly, before the Delhi High Court it was the homeless who were over-represented before the Beggars Court.

The third and more structural objection to this placement of ‘indirect discrimination’ in Navtej is that the court applies manifest arbitrariness in the context of Article 14. Chandrachud J. even says that discrimination under Article 15 could be indirect. This raises interesting questions about the nexus between Articles 14 and 15. Does Article 15(1) only cover direct discrimination? Would all cases of disparate impact only be covered by Article 14? Is one way to reconcile Chandrachud J.’s opinion that Article 14 covers indirect discrimination for markers other than the grounds covered by Article 15? However, what then is so unique about direct discrimination? Is it harm? Is it intention? Similarly, if we are to say that Article 15 covers direct and indirect discrimination for the grounds and Article 14 covers indirect discrimination for other grounds, what is the significance of Article 15(1)? Why do we even have grounds?

While I cannot deal with all these questions at present and may do so at a subsequent stage, my point remains that this reading of Navtej and Harsh Mander might help us add substance to the doctrine of ‘manifest arbitrariness’.

Guest Post: Nisha Priya Bhatia vs Union of India – Redefining the Scope of Sexual Harassment?

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


[This is a guest post by Megha Mehta.]


On 19.8.2008, Nisha Bhatia, a senior RAW officer [‘appellant’] attempted suicide in the reception of the Prime Minister’s Office to protest the mishandling of her sexual harassment complaint by RAW [‘PMO Incident’]. In April 2020, her long-standing legal battle finally culminated in a judgement by a Division Bench of the Supreme Court (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394) awarding her Rs. 1 lakh as compensation for the violation of her fundamental right to life and dignity under Articles 14 and 21 of the Constitution.

In this essay, I argue two points: first, this decision paves the way for radically redefining sexual harassment by extending its scope from unwelcome sexual behavior to all forms of gender-based discrimination at the workplace. Furthermore, it imposes positive institutional liability for failure to provide a safe and gender-sensitive working environment over and above that stipulated in the Vishakha guidelines (Vishakha v. State of Rajasthan, AIR 1997 SC 3011), and the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [‘POSH’]. Second, the Court, however, fails to apply this understanding of sexual harassment as a form of workplace discrimination while analyzing the mala fides of the appellant’s compulsory retirement by RAW.

Expanding the Scope of Sexual Harassment

A brief summary of facts: the appellant was directly recruited to RAW in 1988. She was posted as Director, Training Institute (Gurgaon) and Director at the Delhi HQ in July and August 2007 respectively. It was while serving in this capacity that she filed a sexual harassment complaint on 7.8.2007 against Mr. Alok Chaturvedi (Secretary (R)-In-Charge of RAW) and Mr. Sunil Uke (Joint Secretary-In-Charge) alleging that they had victimized her for refusing to join an internal sex racket.

The organization constituted an Internal Complaints Committee (‘ICC’), as required by the Vishakha guidelines, after a gap of almost 3 months. Moreover the said ICC did not contain a “third party, either NGO or other body who is familiar with the issue of sexual harassment” as stipulated in Vishakha. The ICC was ultimately reconstituted with the addition of one Ms. Tara Kartha (Director, National Security Council Secretariat) as third-party member in April 2008-evidently not a NGO or person associated with sexual harassment issues. When the appellant refused to participate in the ICC proceedings citing non-compliance with Vishakha and the lack of authority vested in the ICC to proceed against Mr. Chaturvedi, the ICC ex-parte concluded that no allegation of sexual harassment was made out. It was only after the infamous PMO Incident that the PM constituted an External Committee under the chairmanship of a retired female IAS officer, which also concluded that the sexual harassment allegation was not proved. However the External Committee reported in its findings that the appellant’s complaint was not given proper redressal, and that Mr. Chaturvedi as an employer had committed gross violation of the Vishakha guidelines.

In the meanwhile, the PMO, through the Press Information Bureau, released a press note on the PMO Incident stating that the appellant was in a ‘disturbed state of mind’ and suffering from psychiatric ailments (This was later quashed by the Supreme Court vide order dated 15.12.2014 as violative of the appellant’s human rights and dignity, but an archived copy of the note is available here). Subsequently, the appellant was compulsorily retired under Rule 135 of the RAW (Recruitment, Cadre & Services) Rules, 1975 [‘1975 Rules’] due to her being ‘exposed’ as an intelligence officer. It is out of the appellant’s constitutional challenge to Rule 135 and her retirement order, along with the various writ petitions filed by her seeking injunctive reliefs against the respondents that the decision in Nisha Priya Bhatia has arisen.

The Court, relying on the External Committee’s findings, held that the respondents (Union of India and RAW) had violated the appellant’s fundamental rights and were liable to pay her compensation as follows:

102. The scheme of the 2013 Act, Vishaka Guidelines and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a non-hostile working environment is the basic limb of a dignified employment. The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace…The factual matrix of the present case is replete with lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. To wit, time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.

104. In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had been clearly impinged. Taking overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000 (Rupees one lakh only). Had it been a case of allegations in the stated complaint of the petitioner been substantiated in the duly conducted inquiry (which the petitioner had failed to do), it would have been still worst and accentuated violation of her fundamental rights warranting suitable (higher) compensation amount. (emphasis supplied)

The above discussion is an important step forward in Indian sexual harassment jurisprudence. In the United States, employment law scholars have long since critiqued sexual harassment law for being based on a ‘desire-dominance’ paradigm which places inappropriate sexual advances by men towards female colleagues at the center of the problem. This ignores the underlying structures of gender discrimination at the workplace which facilitate such behavior (Schultz, 1998, 2005). In the present case, Mr. Chaturvedi had allegedly commented to the appellant that instead of being worried about her career and children, she should find herself a man to ‘have fun’ with. Thus the appellant’s grievances stemmed not just from her supervisors’ pressurizing to join a sex racket, but from their overall discriminatory attitude, and a general organizational unwillingness to impose consequences for such sexist behavior.

The ‘desire-dominance’ paradigm is apparent in Indian sexual harassment law, inasmuch as both the Vishakha guidelines and POSH define sexual harassment only in terms of unwelcome behavior of sexual nature, and exclude other non-sexual forms of gender-based discrimination. The creation of a ‘hostile work environment’ is treated as sexual harassment only when it is connected with unwelcome sexual behavior (Vishakha, ¶16.2; POSH, Section 3), though employers are generally obligated to ensure safe working environments.

Further, though Vishakha recognizes sexual harassment as a violation of working women’s fundamental rights under Articles 14, 15, 19(1)(g) and 21, it is curiously silent on Article 16. There is no legal framework in India for recognizing sexual harassment as a form of employment discrimination akin to Title VII of the Civil Rights Act, 1964 and the Equal Employment Opportunity Commission in the United States. Rather, there is little emphasis on institutional liability under Indian law-while Vishakha does not expressly provide for employer liability (though it is implied that constitutional remedies are available), POSH only provides for the imposition of a criminal fine extending to Rs 50,000 for those who contravene its mandate (POSH, Section 26). This posits non-compliance as a criminal offence against the State and does not provide for any civil compensatory remedy to the complainant, though arguably the courts may direct that such a fine should be deposited in favour of the complainant under Section 357 of the CrPC.

Therefore Nisha Priya Bhatia is radical insofar as it expressly recognizes that regardless of whether her allegation is proved or not, a female employee may, as a matter of constitutional right, claim compensatory remedies from her employer for the creation of a hostile environment at the workplace. Further, this is treated as a distinct violation from the conventional definition of sexual harassment as the commission of unwelcome sexual acts, though the decision notes that the victim may claim a higher amount of compensation if such acts are proved. The terms ‘prejudice’ and ‘discriminatory’ are used broadly in the decision, and can hence be construed to account for the intersectionalities of gender, caste and class-based discrimination which female employees experience at the workplace. It can be hoped that in due course of time this protection will be extended to persons of all genders and sexualities who experience discrimination on account of not conforming to hegemonic standards of masculinity at the workplace. However, as Part II elaborates, this decision does not really break out of the ‘desire-dominance’ paradigm.

Sexual Harassment as a Labour Rights Issue 

Unfortunately, the reconceptualization of sexual harassment discussed in Part I comes only towards the fag end of the judgement. The Court does not apply this understanding of sexual harassment as a form of workplace discrimination while dealing with the validity of the appellant’s compulsory retirement by RAW.

The appellant had contended that Rule 135 of the 1975 Rules violates Articles 14 and 311 of the Constitution insofar as it confers the discretion to compulsorily retire an intelligence officer who is ‘exposed’, without the safeguard of an inquiry. Further, that her compulsory retirement was mala fide and an act of victimization. Though the Central Administrative Tribunal directed her reinstatement (while refraining from deliberating on the constitutionality of Rule 135), the Delhi High Court upheld the retirement order. The Supreme Court held, relying upon State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892 and State of U.P. v. Sri Shyam Lal Sharma, (1971) 2 SCC 514 that Article 311 is only attracted when the action being taken against a public officer is in the nature of a ‘punishment’ (¶29). Rule 135 is not covered by the scope of Article 311, as the order of compulsory retirement on grounds of ‘exposure’ did not entail any “charge, stigma or imputation” against the appellant (¶32). The Court further held, in reliance upon the Delhi High Court decision, that the order of compulsory retirement was not mala fide as it was justified on grounds of public interest (¶49) and that there is a presumption of “constitutional trust” in offices such as that of the PMO (¶57).

Additionally, the appellant’s prayer for amending the CCS (CCA) Rules, 1965, to provide adequate representation to sexual harassment complainants, was dismissed on the ground that it would infringe ‘separation of powers’ (¶94). This is even though the Court has, on previous occasion, directed the amendment of service rules and standing orders to give effect to the Vishakha guidelines (Medha Kotwal Lele v. Union of India, (2013) 1 SCC 311).

Therefore though the Court adopts a progressive understanding of sexual harassment while awarding compensation to the appellant, it sticks to the traditional gender-blind legal positivist perspective while upholding her retirement. The Court’s analysis fails to account for how transfers/premature retirements are frequently used as retaliatory tools in sexual harassment cases. Hence these can amount to ‘punishment’ so as to attract the application of Article 311. This is even though the decision notes that a ‘preliminary inquiry’ commencing 8.8.2008 (which is prior to the PMO Incident) had been conducted against the appellant on grounds that she was indulging in ‘misbehaviour’ and ‘unauthorized contact’ with the media. The Court observes that this inquiry indicates that the retirement order was not without application of mind (¶55). If that is so, then a certain level of ‘stigma’ was certainly sought to be attributed to the appellant. In this regard, the CAT order does a better job of analyzing how Rule 135 was ‘weaponized’, by noting that the reports recommending the appellant’s retirement may have been prepared by persons unfriendly to her (Nisha Priya Bhatia v. Secretary (PG & Coordination), Cabinet Secretariat, 2010 SCC OnLine CAT 549, ¶20-23).

It can be argued that from an intelligence organization’s perspective it seems perfectly rational to terminate the appellant’s services following such a highly controversial chain of events. However the conduct of the preliminary inquiry, along with the PMO’s press release, reveals a concerted effort to depict the appellant as a stereotypical hysterical/deluded female complainant, not a senior intelligence officer who was so traumatized by her hostile work environment that she was willing to set aside her repute (to the extent of stripping in court) and risk ‘exposure’ to bring attention to her cause. The fact that the appellant has borne such immense economic and psychological costs for bringing action against her employers, and their attempts to discredit her reputation, should prima facie have been interpreted as erasing any “constitutional trust” vested in them and prompted a more critical inquiry into their motivations for retiring her. Instead, the Court has effectively ‘settled’ the matter by awarding the appellant monetary compensation, which hardly corresponds to the loss of employment opportunity and the stigma of premature retirement.

Further, ¶99 of the decision notes that it was only after the PMO Incident that the sexual harassment inquiry was delegated to the External Committee, which ultimately found that there was gross violation of the Vishakha guidelines. The complete chronology of events (given in ¶53) strongly indicates that the appellant’s ‘exposure’ was a condition precedent to ‘exposing’ her hostile work environment. Upholding the appellant’s retirement effectively means that any female RAW officer who is sexually harassed by a superior would find herself in the catch-22 of either staying silent, or risking ‘exposure’ and losing her employment.

Pertinently, even in more conventional workplaces, Section 16 of POSH imposes a strict confidentiality requirement with respect to ICC proceedings. This is including the identity of the respondent therein, though information may be disseminated regarding ‘justice secured’ to a victim. Though this is presumably meant to safeguard the victim from stigma, it ties in with a general neo-liberal regulatory framework which ensures that workplaces can function without the hiccup of the inconvenience and disrepute caused by female labourers’ complaints.

If the Court had noted how sexual harassment is an institutional malaise as the starting point of its analysis, then perhaps the verdict on the compulsory retirement order would have been different. However, as the very first paragraph notes, the crux of the decision’s legal analysis is ultimately about maintaining the balance between the “security of a State organization” and the “individual interest of a person employed thereat as an intelligence officer”, not on holding the State responsible for ensuring safe working conditions for women. In this way labor rights jurisprudence treats sexual harassment at the workplace as the problem of the individual woman concerned, to be resolved discretely between her and her employer, rather than an employment discrimination problem for which the workplace is actively culpable.

As I write this, it is probable that labor laws in many states, if not nation-wide, will be suspended to facilitate industrial growth post the COVID-19 lockdown. This is even though the general negative economic impact of the pandemic is bound to exacerbate hostile work environments by forcing women trapped in financially precarious situations (particularly migrants and domestic workers) to submit to prejudicial and degrading conditions in exchange for work. Social distancing norms are likely to make workplaces prioritize the conduct of sexual harassment inquiries even lesser than they already do, though technology may be used to ease logistical difficulties. In such a situation it is all the more important that the State takes cognizance of preventing sexual harassment at the workplace as part of its constitutional obligation to ensure dignified working conditions, rather than just another brick in the wall of ‘crimes against women’.

All views expressed in the essay are personal.

Guest Post: The Supreme Court’s 100% Reservation Judgment – Two Inconsistencies

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


[This is a guest post by Anant Sangal.]


The jurisprudence of the Supreme Court (‘Court’) on affirmative action is rife with contentions. This article will explore two such shortcomings in a recent judgment of the Court. On 22nd April 2020, a five-judge Constitution Bench handed down its decision in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (‘Chebrolu’, Civil Appeals Number 3609 and 7040 of 2002). The petitions challenged the constitutional validity of the Government’s Office Memorandum 3 of 2000, which provided 100% reservation in respect of appointment to the posts of teachers in the Scheduled Areas. The G.O.M. was issued by the Governor of the erstwhile state of Andhra Pradesh, exercising his powers under Paragraph 5 of Schedule V of the Indian Constitution.

Among a variety of interesting questions the Court answered in Chebrolu, many of which also stretched beyond the typical row pertaining to the validity of 100% reservation of seats for the Scheduled Tribes, I will be limiting my discussion only around the Court’s observation on the very nature of the affirmative action and the method adopted by the Court in reviewing the G.O.M.

Reservations and Equality: An ‘Exceptional’ Relationship

While deciding on the validity of the 100% reservation of seats, in paragraph 116 of the judgment, Justice Arun Mishra, speaking for the Court observes,

116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it was laid down that reservation should not exceed 50 percent; however, a little relaxation is permissible with great care. Reservation is an exception to the general rule. The quantum of reservation should not be excessive and societally injurious.

However, while deciding on whether the impugned notification is a mode of classification under Article 16(1) or is merely a tool to provide reservations to a certain identified class under Article 16(4) of the Constitution, Mishra J. notes as follows:

137. […] Clause 4 of Article 16 is an instance of classification arising out of Clause 1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4) are all facets of equality. In Indra Sawhney (supra), it was held that Article 16(4) is not an exception to Article 16(1) but a part of equality.

This brings into question various interpretations used by Mishra J. to make two contradictory observations in the same judgment. For Mishra J., the reservation of seats  is an exception to the general norm (of equality) [116]. However, all forms of affirmative action minus reservation of seats (such as by waiving off fees, relaxed age criterion, etc., which are also examples of the State’s policy of affirmative action) discussed in the jurisprudence on Article 16(4), are instances of furthering the concept of equality underlying Article 14 [137].

Therefore, while holding that reservations are an exception to the general norm, it actually appears that the Court’s discomfort stems from the amount of reservation extended to the Scheduled Tribes. This is visible in Mishra J.’s discussion in paragraphs that precede and succeed paragraph 116. For the Court, reserving 100% seats is violation of equality as a norm because in paragraph 115, Mishra J. writes how 100% reservation “would amount to unreasonable and unfair and cannot be termed except as unfair and unreasonable.”. At various other instances, the Court discusses the ‘exceptional’ situations for which the Court in Indra Sawhney allowed the 50% ceiling to be breached.

However, when the Court returns to the discussion on the nature of classification for Scheduled Tribes under Article 16(1) for the purposes of allowing them affirmative action under Article 16(4), it uses the ‘reservation as a facet of equality’ principle. This is done so that the demand of the State, arguing that the notifications under challenge create only a new category under Article 16(1), is not legitimized, and the Scheduled Tribes covered by the notifications continue to be treated under Article 16(4) itself. This, in turn, is because projecting the STs as a new class under Article 16(1) will take them out of the ambit of the 50% ceiling under 16(4), which was contemplated by the Court in M.R. Balaji (1962) and reaffirmed three-decades later in Indra Sawhney.

Be that as it may, the Court’s skepticism about the 50% ceiling as pierceable yet extendable only up to a ‘reasonable’ number is symptomatic of the debate, which was put to rest by the Court in N.M. Thomas (1975). Before N.M. Thomas, in Rangachari (1961), the Court was deciding if Article 16(4) extended to reservations in promotions too or limited its application only to the stage of appointment. While the Court held that reservations under Article 16(4) are an exception to Article 16(1), it is interesting how Justice Wanchoo in paragraph 31, who was writing a minority opinion, held that it would be wrong to understand that all reservations which take place in public employment, are reserved by virtue of protection granted under Article 16(4), because such protection would militate against the principle under Article 16 (1).

This was cemented by the Court later in its decision in M.R. Balaji. In Balaji, while holding that Article 15(4) is an exception to Article 15(1), the Court capped the quantum of reservations at 50%. By limiting the amount of reservations, the Court reaffirmed the point that reservations, if unlimited, are a threat to equality. By overturning the position held by Rangachari and Balaji, in noting that 16(4) was a facet of 16(1) and not an exception, the majority in NM Thomas did a credible job. However, by not touching the numerical cap posed on the quantum of reservations, in many senses, both Thomas as well as Indra Sawhney continued to approach affirmative action with a certain degree of suspicion.

The Court in Chebrolu is representative of the infirmities borne by the majority benches in M.R. Balaji and N.M. Thomas. Mishra J. reignites a debate, which was hardly discussed after its final settlement by the majority in Indra Sawhney. It is not acceptable to the bench how 100% seats could be reserved for the Scheduled Tribes, for they view such reservation as antithetical to the idea of equality, but reasons given for this position are not satisfactory.

Rather, Mishra J. crafts a new line of defence to argue the ‘equality’ aspect. He holds that by reserving all the seats for the Scheduled Tribes, not only the people belonging to any unreserved category are affected, but such action affects even the Scheduled Castes, the OBCs, and even those STs, who settled in the area after 26th January 1950 [the G.O.M. conferred the 100% reservation only to those ST families who were residing in that local area from 26th January 1950]. Irrespective, the Court’s inability to grapple with the idea of 100% reservations is certainly not doctrinal and reveals itself when the Court openly says that such kind of reservation is an “exception to the general rule” in paragraph 116.

Blurring the Standards of Review

The second shortcoming is a common phenomenon in the general jurisprudence of writ courts in India. In paragraph 115, the Court holds that the action of granting 100% reservation is nothing but ‘unfair’ and ‘unreasonable’. Later, in paragraph 125, the Court holds that such reservation is ‘irrational’ and ‘arbitrary’ and violative of Article 14 of the Constitution of India. In paragraph 127, it holds that the action is both ‘unreasonable and arbitrary’, and finally in paragraph 135, the G.O.M. No.3/2000 is constitutionally invalid because it is “not only irrational, but it violates the rights guaranteed under Part III of the Constitution”.

For the Court, there seems to be hardly any distinction between what is ‘unfair’, ‘unreasonable’, ‘irrational’, and ‘arbitrary’. This is because the Court uses these terms interchangeably at various points and does not provide any reasons for why the G.O.M. is either only arbitrary or unreasonable or irrational; or, in another situation, why the notifications are both arbitrary and unreasonable along with being irrational too. Not only this, for the Court, the distinction between a law to be reasonable and the same to not be arbitrary is simply non-existent. For that, it fails to establish that a law may be reasonable yet arbitrary or the other way round.

All these modes of review developed as possible manifestations of the right conferred by Article 14 and therefore, I will briefly argue how the distinction between these tests requires the invocation of each of these terms only in certain, distinct situations. This is despite the fact that all these principles became different markers for fulfilling the right to equality. However, as Tarunabh Khaitan argues, a law which validates torturing of any human being may be termed as being unreasonable; however, it does not perpetuate a culture of inequality or arbitrariness. For implementing such law, the very authority which decided to implement the same could be termed to be acting whimsically or arbitrarily. However, this form of arbitrariness is not the same as the substantive arbitrariness of the law or the arbitrariness which may be perpetuated by implementation of such arbitrary law. In short, the two kinds of arbitrariness at play are different in their inherent nature.

That said, the same law would have been unreasonable as well as arbitrary, had it said that any person belonging to “X” community could be picked up and tortured for no reason. It is unreasonable because it legitimizes torturing of a human but is arbitrary, because it authorizes that torturing for a selected community could take place, without having any rational or intelligible basis.

On the question of unreasonableness, while the kind of laws such as the ones which were under challenge in F.N. Balsara (1951) could be termed as being ‘unreasonable’ (because the prohibition on selling of foreign liquor to all but to the military personnel was based on an unreasonable classification), however, as Abhinav Chandrachud and Khaitan have independently argued, the Court’s usage of the unreasonableness test has been dominated by the Wednesbury unreasonableness, a highly deferential standard used for reviewing administrative actions of the State. The test of arbitrariness, as propounded in E.P. Royappa (1973), could be termed as a manifestation of the rational basis review test. This is a position that Khaitan has generated after interpreting the decision of the Court in McDowell (1996). He argues that legislation could not be struck down for being only arbitrary, and that a consequent violation of a particular right conferred by the Constitution also needs to be established.

The foregoing discussion shows that the Court in Chebrolu used these different tests, without determining which one of them was actually attracted. For instance, it might be a case that the action of conferring cent percent reservation to the Scheduled Tribes could be ‘unreasonable’ or even ‘irrational’ because it does not leave any scope for catering to the demands of any other minority. The rational view would demand adjusting of all the minorities (SCs and OBCs) within the scope of reservations, which might then even be absolute (if circumstances make a case for such a conferment). However, it will be wrong to term it “arbitrary” because the class of people who are conferred with this reservation, belong to a category already protected within the scope of Article 16(4). It does not provide the benefit to the socially and economically affluent communities, which are not even distantly envisaged by Article 16(4).