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.

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’.

Rethinking “Manifest Arbitrariness” in Article 14: Part I – Introducing the Argument

[This is the first in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation.]


Writing in 2015, Prof. Tarunabh Khaitan argued that while the “old doctrine” of equality is too narrow, the solution ought not to be the “new doctrine” of arbitrariness. Instead, the old doctrine itself can be developed further. The old classification doctrine in a traditional sense enquires into the questions of (a) whether there is an intelligible differentia, and (b) whether there is a rational connection between the measure and the objective. Prof. Khaitan argues that theoretically, the classification doctrine itself can be developed by expanding the range of questions to look beyond just those two. Illustratively, the following are questions which a court could ask in this regard over and above the traditional two questions (for a fuller list, see Prof. Khaitan’s piece):

  • Does the rule have a disproportionate impact on different classes of persons?
  • Is the differentia presumptively impossible?
  • Is the apparent objective genuine?
  • Is the apparent objective legitimate?

Prof. Khaitan ultimately concludes:

The following conclusions emerge: (a) the ‘classification test’ (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules; (b) it is a limited and highly formalistic test applied deferentially; (c) the ‘arbitrariness test’ is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (at least in the actor-sensitive sense). Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…

The Supreme Court has now confirmed in recent decisions that the “arbitrariness” doctrine is indeed part of Article 14, and that legislative measures can be challenged on the basis of “arbitrariness”; and point (e) above is seemingly no longer reflective of the current position. However, the question of what exactly amounts to a breach of the arbitrariness standard is still unclear.

Several posts on this blog have considered some of the recent judgments of the Supreme Court; but an enunciation of the actual standard remains elusive. This series of essays argues that although the recent cases are labelled as accepting an “arbitrariness” challenge to legislation, they ought not to be taken as referring to the ‘arbitrariness’ of administrative law. When one is thinking through the lens of administrative law, ‘arbitrariness’ is a ground for review of administrative actions. But when one speaks of ‘arbitrariness’ as a matter of constitutional law, one is not speaking of the same thing. ‘Arbitrariness’ in constitutional law is distinct from the ‘arbitrariness’ of administrative law. The constitutional law test is of ‘manifest arbitrariness’; and this series of essays will suggest that “manifest arbitrariness” is not simply “an extreme form of administrative law arbitrariness”: the difference is not merely of degree.

To arrive at a workable test for determining what the content of the Article 14 arbitrariness standard is, this series will examine the judgments of the Supreme Court upholding an arbitrariness challenge to legislation. This is because in cases dealing with challenges to legislation, whatever label the Court may apply, it is clear that the Court is necessarily dealing with Article 14 and not a general administrative law / common law principle. Before proceeding to analyse those cases, however, a brief introductory detour to Royappa (which although not a challenge to legislation is the case most associated with bringing ‘arbitrariness’ into the fold of Article 14) would be valuable. Accordingly, the present post takes a brief look at Royappa; and subsequent posts in this series will then proceed to analyse the other most relevant judgments on Article 14 arbitrariness.

In a famous passage Royappa, Justice Bhagwati noted [para 85 of the SCC report in (1974) 4 SCC 3]:

Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… 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…

This passage has seemingly attained a life of its own. A very quick scan on the SCC Online database for the phrase “in fact, equality and arbitrariness are sworn enemies” results in the following results: 36 judgments of the Supreme Court of India, 223 from the High Courts, and 8 foreign cases (from Bangladesh, Sri Lanka and South Africa). However, mere reproduction of this passage is not sufficient to understand what Royappa holds (and – as importantly – what it does not hold).

There were two judgments in Royappa – one by Ray CJ (for himself and Palekar J.), and another one by Bhagwati J (for himself, Chandrachud J. and Krishna Iyer J.). The two judgments concurred in the result, but there were some differences in the reasoning.

The petitioner in Royappa was a senior member of the Indian Administrative Service. He was appointed to act as the Chief Secretary of Tamil Nadu. In April 1971, he was appointed as Deputy Chairperson of the State Planning Commission. He did not contest this appointment, which he considered to be equivalent in status to that of a Chief Secretary. Thereafter, in June 1972, the Petitioner was appointed as an “Officer on Special Duty”. This post was a non-cadre post; and the Petitioner was aggrieved by this appointment. In a petition under Article 32 of the Constitution, he alleged that the transfer to a non-cadre post was illegal and unconstitutional, and further prayed for a direction to be re-posted as Chief Secretary.

Ray CJ’s concurring judgment found on a detailed evaluation of the facts that the post of “Officer on Special Duty” was not lower in status and dignity that the other posts held by the Petitioner, and that the appointment was not motivated by mala fides. The main difference between the judgments of Ray CJ and Bhagwati J relates to the burden of proof: while Ray CJ found as a fact that the two posts were indeed equivalent, Bhagwati J found that the Petitioner could not demonstrate that the posts were not equivalent.

In dealing with the contention regarding violation of Article 14 because of the transfer, Bhagwati J. framed the question in the following terms (para 86 of the SCC report):

… What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons?

This was answered by holding that the post of Officer on Special Duty was not demonstrably inferior in status and responsibility to that of Chief Secretary. Although prima facie the Court did have doubts about the equivalence of the posts, the materials on record did not enable the Court to reach a conclusive finding about the inferiority of the post.

What is interesting is that the Court also considered the contention that (whatever be the true position on equivalence of the two posts) the transfer was also illegal because the State Government did not apply its mind to the question of equivalence. The Court in fact agreed with this contention, but refused to give relief to the Petitioner. The Court found (para 84):

… the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty… There was thus no compliance with the requirement of Rule 9…

If that were so, one would have thought that the Court would then go on to hold that this non-application of mind to relevant materials is arbitrary. Yet, the Court held:

But we cannot in this petition under Article 32 give relief to the petitioner by sinking down his appointment to the post of Officer on Special Duty… mere violation of Rule 9… does not involve infringement of any fundamental right…

 

 It would seem, then, that the State Government was under a specific duty in terms of the relevant Rules to apply its mind and objectively determine the equivalence of the posts. The Court found that the State did not in fact apply its mind. Yet, this non-application of mind did not rise to the threshold of an Article 14 violation: that is why “in this petition under Article 32”, relief could not be granted to the Petitioner. Thus, non-application of mind – which may well amount to ‘arbitrariness’ in an administrative law sense – would not itself amount to a violation of ‘arbitrariness’ in the Article 14 sense.

The next essays in this series will consider the judgments of the Supreme Court applying the arbitrariness doctrine in adjudicating on the constitutional validity of legislation. It will be suggested that the best understanding of the doctrine is that “manifest arbitrariness” is simply shorthand to expand on the traditional two questions of the classification test. As Prof. Khaitan had argued, “Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…” That is indeed what has happened: “manifest arbitrariness” is just the label given to the “expansion and substantiation”.

Coronavirus and the Constitution – XXII: The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response [Guest Post]

[This is a Guest Post by Tejas Popat.]


In a previous post, Devesh argued that the recommendations of the 15th Finance Commission [‘Commission’] violate the principle of equality. This infraction, he states, occurs due to the use of an arbitrary formula and its results. Though Devesh does not make it explicit, the inevitable consequence would be declaring these recommendations unconstitutional or, in the alternative, redistributing funds to take care of the resulting inequality. In fact, he alludes to the latter while providing a different means of enforcing the same i.e. Article 282. I only seek to disagree with Devesh on the scope of judicial review he envisages. My thought on the issue are as follows.

Working of the Commission

The duties of the Commission have been outlined in Article 280(3). Sub-clause (d) is of relevance here. It states that the Commission shall also make recommendations on “any other matter referred to the Commission by the President in the interests of sound finance.” This enables the President to circumscribe the scope of the Commission’s recommendations through the Terms of Reference [‘ToR’]. Based on these ToR, the Commission prepares a report containing its recommendations which is then laid before the Parliament. Therefore, there arise two areas of challenge. First, the recommendations of the Commission i.e. the outcome and second, the ToR i.e. the process.

Judicial Review of Recommendations

Let us first consider the recommendations. It is highly unlikely for the recommendations themselves to be the subject matter of judicial review. This is primarily because, as Article 281 states, the recommendations are only that – recommendations. They are not binding. Therefore, the question of judicial review does not arise. However, an unreasonable application of these recommendations can invite judicial review. An order which resorts to those recommendations becomes the subject matter of challenge and not the recommendations themselves.

This is evident in the COVID – 19 crisis. As was reported, the allocation under SDRMF by the Ministry of Home Affairs [‘MHA’] was on the basis of the recommendations of the 15th Commission. The Commission prepared a Disaster Risk Index for each state devised on the basis of first, the risk of a hazard and second, the vulnerability of each state (¶1-5, Annex 6.2 of the Commission’s Report). The catch here is that the ratio was primarily based on only four hazards, i.e floods, draughts, cyclones and earthquakes (¶5, Annex 6.2). Significantly, the Commission admits that, “due to an absence of a disaster database at the national level, developing a risk index of greater complexity and accuracy has been found to be difficult.” The Commission itself sounded abundant caution before making these recommendations.

I do not question the methodology of the Commission or its approach. The problem, in my opinion, lies in order of the MHA comparing apples to oranges i.e. using a formula devised for completely different set of disasters (in nature and magnitude) and blindly transporting it to the to COVID – 19 pandemic. As is analysed here, the formula was simply a misfit for the current crisis.

In such a situation, the order of the MHA which provided for such devolution blindly following the Commission’s recommendations ought to be challenged. Such executive orders ought to follow the administrative law standard of Wednesbury unreasonableness. They ought to take into account relevant considerations and exclude irrelevant considerations. Therefore, the MHA order on fund devolution, if judicially reviewed may fail this test.

Significance of Terms of Reference and Judicial Review

ToRs in my opinion can be challenged on the ground that they are contrary to Article 280(3)(d). Before dwelling on how the ToR may violate Article 280, it is necessary to understand why the ToRs are significant and the impact that they may have. This can be usefully explained by the example Devesh takes i.e. the ToR of the 15th Commission. Among many which have been detailed by V Bhaskar in his piece, we will explore two of those fault lines in the ToR of the 15th Commission here (these fault lines are explored in legal terms, not in terms of policy).

Devesh states that Kerala could not benefit from the COVID-19 relief fund because of the ratio recommended was faulty (See this piece for the exact cause and effect). That is correct. However, as V Bhaskar and the Report of the 15th Commission 2020-21 itself suggest, the genesis of the problem lies in the ToRs of the 15th Commission. The ToR mandated the Commission to use the 2011 census data when, for over many years, the 1971 census was relied on. Some states complained that the ToR penalized them despite having succeeded in their efforts at population control. This was because comparatively, greater the population, greater is the fund devolution. Therefore, using new data where certain states lowered their population since 1971 would obviously create inequities. The Commission responded to this in its Report in ¶3.19 as follows:

Para 8 of this Commission’s ToR specifies that “the Commission shall use the population data of 2011 while making recommendations.” Our immediate predecessor, the FC-XIV, had expressed the view that though the use of dated population data is unfair, it is bound by its ToR. This Commission is of the view that fiscal equalisation being recommended by it is for the present needs of the States and this is best represented by the latest census data. Given the specific ToR to use 2011 population data, there is no further choice for this Commission.

This mandate to use the census from 2011 was the first fault-line. The second comes in the phrasing of the ToR. V Bhaskar notes that the ToRs of the 15th Commission disabled it from employing need-based assistance as a criterion in determining the ratio of devolution. He states:

Clause 3(b) of Article 280 of the Constitution is usually merged with part of Article 275 (1) and included in the ToR of a finance commission. The ToRs of the last 12 finance commissions over the past 60 sixty years did so. The words “[state] which are in need of assistance,” however, do not find place in the ToR of the XV-FC.

Again, the ToR handicapped the Commission from applying any mode of devolution, which included need-based devolution. Once the Commission is bound by the ToR, such mandates create severe difficulties in the functioning of the Commission. In any case, one conclusion is inescapable – the ToR has direct causal link with the recommendations of the Commission. This is primarily because the ToRs are binding and therefore, dictate the manner in which devolution takes place.

Judicial Review of ToR

 This brings me to the next aspect – the scope of judicial review of ToRs. Before turning to the scope of judicial review, it is necessary to understand the place of the Commission in the constitutional scheme.

The Commission is an independent body intended to advise the President, and through him the Parliament, on matters of fiscal policy. Article 280 does not allow any superintendence by the President in matters of the Commission. It merely allows the President to ask for recommendations on issues. This power, as Babasaheb Ambedkar recognized during the Constituent Assembly Debates, was enabling in nature. Without such references he said, the Commission could not function. Therefore, Article 280(3)(d) does not confer power on the President to define the manner of work of the Commission. It only allows him to define the scope of its work. Three other speakers (Shibban Lal Saxena, Hriday Nath Kunzru and Upendra Nath Barman) seemed to suggest that the Finance Commission would be independent in determining the principles on which fund allocation must take place. Such independence is a necessary ingredient for a Finance Commission to stay true to its constitutional intent.

Keeping this in mind, we will now proceed to define the scope of review. Speaking of ToRs in Nair Society’s Case, the Supreme Court remarked,

It is, furthermore, difficult for us to comprehend as to on what basis, while appointing Narendran Commission, in the terms of reference, the State of Kerala could say that the maximum benefit should be given to a particular section of people. In view of the decision of this Court in Rama Krishna Dalmia & Ors. vs. Shri Justice S.R. Tendolkar & Ors., it is no longer res integra that the terms of reference while appointing a commission may be subject to judicial review.

Though in a different context, this absolute proposition is problematic. It makes the ToR as a whole subject to judicial review. In our situation, such an exercise would involve the judiciary adjudicating on matters of fiscal prudence in determining what ought or ought not to be part of the ToR. In my opinion however, what is judicially reviewable is not the terms themselves but, the nature of the terms involved. By this, what is impugned is the competence of the President acting under Article 280(3) to define the Commission’s working beyond “referring matters.” Therefore, when ToRs include mandatory terms limiting or expanding the manner of the Commission’s work, those terms by virtue of their nature, are ultra vires the power of the President under Article 280(3)(d). Conversely, only ToRs which ask for advice (of an inquiring character) or those which nudge the Commission to adopt a course of action (recommendatory character) ought to be constitutionally permissible.

This is necessary for two reasons. The first is to maintain the independence of the Finance Commission and not allow the enabling power in Article 280(3)(d) to be used as means of superintendence over the Commission’s manner of working. Second, is to ensure that the Commission can truly fulfil its constitutional role as a “Fourth Branch Institution”, because, the result (the recommendations) will only be as fair and true to the idea of federalism as the formula (the ToR).

Therefore, the scope of judicial review in case of a ToR of a Finance Commission ought to be limited to testing its vires vis-à-vis the powers vested to the President under Article 280(3)(d).

To illustrate, the change in the ToR of the 15th Commission excluding a need-based devolution as discussed above would be unconstitutional. This is on two counts. First, because Article 280(3)(d) does not allow the President to limit the Commission’s manner of working. Consequently, the ToR is ultra vires the power under Article 280(3)(d). Secondly, because the ToR impinges on the independence of the Commission which is guarded by the scheme of Article 280. The ToR disallows the Commission from referring to the principle of need-based devolution enshrined in Article 275(1). Therefore, it seeks to override the power of the Commission which would have otherwise allowed it to refer to the principle. Such a ToR, which circumscribes the independent functioning of the Commission, ought to be unconstitutional. This rule applies equally to the mandate of using census data. It ought to be left to the prudence of the experts whether the new data ought to be used and if yes, which census data should be employed. As is evident in the extract quoted above, the 14th Commission disagreed with the ToR but could not proceed to make independent recommendations. Therefore, if the Commission ought to be a truly independent body, the nature of ToRs need to be reassessed.

As Article 280(3)(d) states, the principles of sound finance and its contours are the expertise of the Commission. ToRs which attempt to invert this scheme to suggest the modes and manner of achieving sound finance are a severe infraction of the constitutional framework.


  • The author thanks Prof. Agnidipto Tarafder, Mahima Cholera, Rishabh Mohnot and Aryan Agarwal for their comments on this piece.

Guest Post: Hindustan Constructions – Another Instance of the Failings of Manifest Arbitrariness

[This is a Guest Post by Dhruva Gandhi and Sahil Raveen.]


Last year in Hindustan Construction Company Limited v Union of India (“Hindustan Construction”), the Supreme Court of India delivered a widely welcomed decision in so far as arbitral proceedings in India were concerned. Once an award is passed by an arbitral tribunal under the Arbitration and Conciliation Act, 1996 (“Act”), it can be challenged by any aggrieved party under Section 34 of the Act before a principal civil court having jurisdiction vis-à-vis the seat of arbitral proceedings. The award is executed as per Section 36 of the Act as if it were a decree of a court. For nearly two decades, there has been confusion prevailing with respect to whether the mere filing of an application under Section 34 amounts to an automatic stay of the execution proceedings.

In Hindustan Construction, the Supreme Court clarified this proposition. It said that there mere filing of a Section 34 application does not lead to a stay on execution. However, in the process, it struck down two statutory provisions using the doctrine of ‘manifest arbitrariness’. In this post, we critique the application of this doctrine. Last year, commenting on the IBC decision in Committee of Creditors in Essar v Satish Kumar Gupta, we had remarked how ‘manifest arbitrariness’ is a powerful tool and could lead the Judiciary into unchartered territory. In this post, we show how in Hindustan Construction, the Court has effectively substituted the Legislature’s preferences with its own under the garb of this doctrine.

Section 36 and the conundrum of automatic stay on enforcement of arbitral awards

Section 36 of the Act, prior to the Arbitration and Conciliation (Amendment) Act, 2015 (“2015 Amendment”) said,

36. Enforcement-Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were decree of the Court.

The Supreme Court in National Aluminum Company Ltd. (NALCO) v. Pressteel & Fabrications (P) Ltd. and Anr (“NALCO”) interpreted Section 36 to mean that the moment an application challenging an arbitral award is filed under Section 34 of the Act, there will be an automatic stay on the execution of the award. In Fiza Developers and Inter-trade Private Limited v. AMCI (India) Private Limited and Anr, (“Fiza Developers”), the Supreme Court reiterated this position. This position was undesirable for an award holder because an award debtor simply had to lodge an application to evade payment/compliance under the award. With the pendency in Indian legal system, it meant that an award debtor could hold up execution for at least a few years.

Subsequently, by the 2015 Amendment, the Legislature amended Section 36 of the Act to read,

36. (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908.

Therefore, the 2015 Amendment clarified in no uncertain terms that the mere filing of a Section 34 application would not lead to an automatic stay on execution.

What is crucial for our purposes though, is Section 26 of the 2015 Amendment. Section 26 said,

26. Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

While Section 36 was amended to usher in much needed clarity, Section 26 of the 2015 Amendment led to a confusion of its own. It was unclear whether or not Section 26 implied that the amended Section 36 would also apply to pending court proceedings that had arisen out of arbitrations initiated before 23.10.2015 (the date of enactment of the 2015 Amendment).

Different High Courts offered conflicting opinions. Finally, the Supreme Court in Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. (“BCCI”) said that the amendments to Section 36 would apply to pending court proceedings, even if they arose out of arbitrations initiated before 23.10.2015. It said that Section 36 was procedural in nature and therefore, amendments made to it could be applied retrospectively. However, the rest of the 2015 Amendment would apply prospectively.

Notably, in our opinion, (even so far as Section 36 of the Act was concerned) Section 26 could equally fairly have been interpreted to apply only to arbitrations commenced after 23.10.2015 and court proceedings arising thereof. The text of the statute allowed for a literal interpretation of that nature.

Thereafter, the Legislature enacted the Arbitration and Conciliation (Amendment) Act, 2019 (“2019 Arbitration”) and further introduced Section 87 in the Act. Section 87 replaced Section 26 of the 2015 Amendment, which was also deleted. Section 87 said,

87. Unless the parties otherwise agree, the amendments made to this Act by the Arbitration and Conciliation (Amendment) Act, 2015 shall—

(a) not apply to––

(i) arbitral proceedings commenced before the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(ii) court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(b) apply only to arbitral proceedings commenced on or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 and to court proceedings arising out of or in relation to such arbitral proceedings.

Evidently then, the Legislature differed with the view espoused in BCCI and sought to take away the basis for that decision.

Constitutional Challenge to Section 87 of the 2019 Amendment

In Hindustan Construction, the constitutionality of Section 87 was challenged. The Supreme Court in an opinion delivered by Nariman J. upheld the constitutionality of the section in so far as it took away the basis for a previous Apex Court decision. However, it struck down the provision for being manifestly arbitrary and thus, in breach of Article 14 of the Constitution of India.

What piques our interest in this post are the reasons offered by Nariman J. to hold Section 87 to be manifestly arbitrary. They were,

  • The 2019 Amendment was based on a Report by the Srikrishna Committee. This Committee had said that there were conflicting High Court decisions on Section 26 of the 2015 Amendment and there was a need to clarify the position. However, this Report was delivered in 2017 whereas the BCCI judgement was delivered in 2018. Therefore, according to Nariman J., the Legislature ought not to have relied on this Report once the Supreme Court had decided the issue.
  • The Report opined that to make provisions of the 2015 Amendment applicable retrospectively may create confusion and uncertainty in that parties may have to be heard afresh. According to Nariman J. there was little substance to this observation as fresh applications for lifting of stay could be decided forthwith.
  • The benefits of Order XLI, Rule 5 of the Civil Procedure Code were available in case of an appeal from a decree but not in case of a challenge to an arbitral award under Section 34 of the Act. Order XLI, Rule 5 says that there shall be no automatic stay on proceedings under a decree merely on filing of an appeal. Section 34 of the Act though, is not an appeal.
  • Section 87 does not consider implications under the Insolvency and Bankruptcy Code, 2016. Award holders unable to recover operational debts under an award may themselves have to bear the brunt of an insolvency application from creditors downstream. Therefore, an automatic stay on the execution of an arbitral award would create unwarranted economic hardship.

In our opinion, none of these reasons hold much merit and we shall deal with them in seriatim.

While the Statement of Objects and Reasons of the Arbitration and Conciliation (Amendment) Bill, 2019 does refer to the Srikrishna Committee Report, it primarily does so in the context of institutional arbitration. On Section 87, it simply says that the Legislature intends to clarify the manner in which Section 26 of the 2015 Amendment would apply. Moreover, the tools of statutory interpretation lead us to imply that the Legislature would be presumed to be aware of the BCCI judgement and simply wished to remove a prop of that decision.

Moving on, the observation of the Srikrishna Committee too was not entirely baseless. In some cases where the Section 34 application was at an advanced stage, the court would now have to consider whether or not to issue a stay on the award under Section 36. However, the decision which a court would actually make is whether or not to lift the stay already in place. Considerations that play on a judge’s mind when lifting a stay are quite different from the ones for the issuance of a stay. Even the mere pendency of a Section 34 application would be a consideration. Therefore, there was both a rational and a plausible basis for the Committee to say that retrospective operation of Section 36 of the Act could potentially lead to inconsistent outcomes.

With respect to the point that no automatic stay operates in case of civil decrees, the Legislature was entitled to create different regimes for arbitral awards as opposed to a decree of a court and then to change the regime with the 2015 Amendment. If at all, one could consider whether this met the twin tests of ‘intelligible differentia’ and ‘rational nexus’ under Article 14. These tests though find no mention in the Supreme Court’s deliberation.

Lastly, the implications under insolvency law that Nariman J. mentions are not unique. It is commonplace to see companies and individuals be rendered insolvent owing to forward payments not having been cleared. Courts expect debtors to factor such recoveries into their transactions. While this is also a point to be dealt with by insolvency law, there is no reasoning offered to show how a one-off economic hardship may lead to a violation of the ‘Right to Equality’ under Article 14 of the Constitution.

Therefore, in our opinion, none of the reasons offered to say that Section 87 is manifestly arbitrary really pass the muster.

The real reason to employ ‘Manifest Arbitrariness’

More than the reasons, what is noteworthy is the language employed by the Court. In our opinion, it is the language which seems to be indicative of the unspoken premise of the decision.

To refer to the Srikrishna Committee Report (without at all referring to this Court’s judgement) even after the judgement has pointed out the pitfalls of following such provision, would render Section 87 and the deletion of Section 26 of the 2015 Amendment Act manifestly arbitration, having been enacted unreasonably without adequate determining principle and contrary to the public interest sought to be subserved by the Arbitration Act, 1996 and the 2015 Amendment Act….

 …. the anomaly, therefore, of Order XLI Rule 5 of the CPC applying in the case of full-blown appeals, and not being applicable by reason of Section 36 of the Arbitration Act, 1996…., is itself a circumstance which militates against the enactment of Section 87, placing the amendments made in the 2015 Amendment Act, in particular Section 36, on a backburner. For this reason also, Section 87 must be struck down as manifestly arbitrary under Article 14….

The retrospective resurrection of an automatic stay not only turns the clock backwards contrary to the object of the Arbitration Act, 1996 and the 2015 Amendment Act, but also results in payments already made under the amended Section 36 to award-holders in a situation of no-stay or conditional-stay now being reversed.” (emphasis supplied)

 

There is a distinct preference that comes to the fore in the language employed by the Court. The objects of the 2015 Amendment are worthy, those of the 2019 Amendment are not. The former must be prioritised and preferred over the latter. The 2019 Amendment to the extent that it militates against the 2015 Amendment must be reversed.

However, this cannot be the basis to strike down a provision of law as unconstitutional. A provision cannot be held unconstitutional only because it purportedly reversed the clock on an earlier amendment. During the evolution of the doctrine of ‘manifest arbitrariness’ one of the objections put forth before the Supreme Court was that it would simply result in a replacement of policy choices of the Legislature with those of the Judiciary. The decision in Hindustan Constructions is a prime example of these fears coming to life. With time, what may happen is that the outcome of a case may even boil down to the court in question. Some judges may agree with the policy preferences of the Legislatures, others may not. The doctrine of ‘manifest arbitrariness’ thus carries a lurking danger of being arbitrary. .

Conclusion

Like in Essar, in Hindustan Construction too, in our opinion, Nariman J. could have arrived at the same conclusion through alternate means.

In Hindustan Construction, Nariman J. held both NALCO and Fiza Developers to be per incuriam. It is now a settled position [(1988 2 SCC 602, Paras 40, 183] that once a decision has been held to be per incuriam, it loses precedent value. As a consequence, the interpretation proposed by NALCO and Fiza Developers was never the law. Therefore, Nariman J. could have stated that there has never been an automatic stay of execution proceedings on the filing of a Section 34 application in India. This has always been the law and there has been no change in the interpretation of Section 36. After that, the 2015 Amendment in so far as Section 36 was concerned would have become merely declaratory e- clarifying the position of law by means of abundant caution. Extending that logic, Section 87 would not have to be applied to Section 36 at all because there would be no question of its retrospective operation. Section 87 only clarified when and how the other amendments introduced by the 2015 Amendment ought to apply.

It is our opinion that laws must not be struck down as unconstitutional unhesitatingly, especially when there are alternatives available. Although slightly unconventional, Nariman J. could have explored this route of interpretation to arrive at the same conclusion and thereby, minimised the use of ‘manifest arbitrariness’, the increased usage of which is matter grave concern.

The Constitutional Challenge to the Transgender Act

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identificationinstead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

The Citizenship (Amendment) Act Challenge: Three Ideas

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.


[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

Guest Post: The Wrath of CAAn – on Citizenship, Secularism, and Equality

[This is a guest post by Abhinav Chandrachud.]


In a paper posted on SSRN, I outline what I consider to be the key arguments for and against the Citizenship (Amendment) Act, 2019 (“CAA”).

Hidden Constitutional Premises:

To begin with, the paper interrogates the premise that the CAA violates the secular fabric of India’s Constitution and argues that there were certain hidden premises in the citizenship provisions of the Constitution that were not very secular at all. Two waves of immigration from West Pakistan to India occurred after 1 March 1947. In the first wave, Hindus and Sikhs came here in large numbers. In the second wave, Muslims who had left India for Pakistan tried to come back home. This created problems in India – the homes of Muslim “evacuees” were being used to rehabilitate Hindu and Sikh “displaced persons”. In July 1948, therefore, a permit system was introduced which made it very difficult for Muslim “evacuees” to return to India if they had property back home. Articles 6-7 of the Constitution indirectly entrenched this preference for Hindu/Sikh “displaced persons” and discriminated against Muslim “evacuees” who wanted to come back home. They did so by making it far easier for those who had come to India prior to 19 July 1948 (i.e., the date of the introduction of the permit system), presumed to be mostly Hindus and Sikhs, to become Indian citizens, while denying Muslim “evacuees” citizenship unless they had obtained an elusive permit for resettlement.

The CAA Is Discriminatory:

That does not mean, however, that the CAA is constitutionally valid. The conditions which existed between 1947-50 (viz., housing shortages, a mass exodus of people, a charged communal environment caused by an influx of refugees) no longer exist today. A persuasive argument can be made that the CAA is discriminatory for five reasons: (i) it leaves out other religious communities in the subject countries (e.g., Jews, atheists, agnostics, Shias, Ahmadiyas); (ii) it ignores other countries in India’s neighborhood (e.g., Sri Lanka, Bhutan, Myanmar); (iii) the cut-off date of 31 December 2014 is arbitrary (though bright line rules tend to be arbitrary, the CAA’s bright line rule undermines its own ostensibly humanitarian objective of protecting those who suffer religious persecution); (iv) it ignores non-religious persecution (e.g., persecution on grounds of race or sexual orientation); (v) the relaxation of the residence requirement from 11 years to 5 years is palpably arbitrary (why should a Parsi fleeing religious persecution from Iran have to reside in India for 11 years to seek citizenship by naturalization, while a Parsi fleeing religious persecution from Afghanistan has to wait only 5 years?)

Underinclusion, or the Chief Justice Patanjali Sastri Defence

However, proponents of the CAA might argue that Article 14 of the Constitution has its limits. In an early case, Chief Justice Patanjali Sastri held that classification brought about by the legislature need not be “scientifically perfect or logically complete”. Building on this doctrine, the Supreme Court has, over the years, held that a pragmatic (not doctrinaire) approach will be adopted in classification cases. The court will frown upon an overinclusive statute but not an underinclusive one (unless there is no fair reason to exclude those left out). The CAA is underinclusive. The state may argue that the categories it excludes are based on degrees of harm and that classification need not be scientifically perfect.

However, this argument is not very persuasive. The classification under the CAA must be tested in the light of the ostensible purpose of the statute. The aim of the statute, according to the Statement of Objects and Reasons, is to protect communities which “faced persecution on grounds of religion” in the subject countries. If that is so, the exclusion of the four categories mentioned above (i.e., other religious minorities in the subject countries; religious minorities in other countries; those who suffer religious persecution after the cut-off date; those who suffer non-religious persecution) lacks an “adequate determining principle” altogether, and therefore is not a simple case of “under-inclusion”; rather, it might fall foul of the “manifest arbitrariness” test.

The CAA is only part of the problem:

However, the CAA is only a part of the problem with Indian citizenship law. Amending the CAA to undo its shortcomings will still not save genuine Indian citizens from being disenfranchised under a National Register of Citizens (NRC). Some 19 lakh people in Assam have been left out of the NRC. Non-Muslims who are excluded from the NRC will only be able to seek refuge under the CAA if they can prove that they came to India before 31 December 2014 from one of the subject countries fleeing (or fearing) religious persecution, which may not be as easy as one might think (despite the “sympathy” provision in Section 8 of the Foreigners Act, 1946).

The paper identifies four problems with Indian citizenship laws: (i) the reverse burden of proof; (ii) the abandonment of citizenship by birth; (iii) the failure to grant a safe harbor to “dreamers”; and (iv) the procedural defects in the Foreigners Tribunals.

The burden of proof in citizenship cases is on the alleged foreigner. Relying on similar laws in countries like the U.S., the Supreme Court of India has upheld this evidentiary rule in Sonowal I, without realizing that the socio-economic condition of the citizens of countries like the U.S. is very different from that in India. An Indian citizen may not, on account of illiteracy, poverty or inadequate infrastructure, be able to prove his citizenship like an American citizen would.

After the 2004 amendment to the Citizenship Act, 1955, the principle of citizenship by birth in India has been abandoned. Now, anyone born in India after 1987 has to prove either than one or both parents are Indian citizens (in some cases, that one parent is not an illegal immigrant). Proving the place of birth of one’s parents is hard for anybody. However, this is especially harsh on some like orphans and transgender persons. How will orphans, who never knew their parents, be able to prove that their parents were Indian citizens? How will transgender persons (some of whom are abandoned at birth) be able to do so?

Indian citizenship law operates harshly on “dreamers” (the term “dreamer” is used in the U.S. to describe the child of an illegal immigrant who arrived illegally in the U.S. at a very young age). A child born in India to illegal immigrants has only known India to be his/her homeland since childhood. That child may now be an adult. Even so, is it not unfair to now deport that person to a country he/she has never known? Similarly, a child who accompanied his/her illegal immigrant parents to India has also known only India to be his/her homeland since childhood and the illegal immigration to India was not his/her fault. Why should such persons, even if they are now adults, be deported overseas?

The judges of Foreigners Tribunals lack security of tenure, without which there cannot be an independent judiciary. They hold office not during “good behaviour” (e.g., for a fixed, non-renewable term in office, or until a retirement age), but for short, renewable terms. Further, though “members” of the tribunal are supposed to have judicial experience, even retired civil servants have recently been accepted as members of these tribunals, contrary to the principles laid down by the Supreme Court. The fact that there are no statutory appeals against these tribunals accentuates these problems. Though a writ remedy is available against their “opinions”, High Courts will not enter into complicated questions of fact while entertaining writs.