Addressing Boundary and Transplant Issues in Horizontality: The Judgment of the Kenyan High Court in Busia Sugar Industry vs Agriculture and Food Authority

Introduction

In a judgment delivered earlier this month (Busia Sugar Industry vs Agriculture and Food Authority), the High Court of Kenya at Busia (through Musyoka J) made an important contribution towards the evolution of horizontal rights jurisprudence. The facts of the case are complex, and can be traced back to ongoing commercial battles over control of sugar production in West Kenya (see, for example, this report of parallel proceedings elsewhere). However, for our purposes, the relevant context is this: the Petitioner – a private sugar milling company – filed a constitutional petition against Respondent No. 1 (the statutory authority) and Respondent No. 2 (a rival private sugar milling company). The allegation was that Respondent No. 1 had wrongly granted a registration license to Respondent No. 2; and because Respondent No. 2’s mill was was within the Petitioner’s catchment area, as a direct consequence of the granting of this license – which allowed Respondent No. 2 to commence operations – the Petitioner was suffering a grave and ongoing financial loss. Compensation was, therefore, prayed for.

Midway through the proceedings, Respondent No. 1 (the statutory authority) was dropped. Consequently, with respect to this claim, the Petitioner’s case was solely against Respondent No. 2: that is, it was now a constitutional case, at the instance of one private party against another private party. Naturally, Respondent No. 2 argued that the case was not maintainable: at best, the Petitioner could pursue its grievances through a civil suit, and not through a case founded on an alleged violation of constitutional rights. Thus, the issue of the horizontal application of the Constitution was squarely before the Court.

Courts that have grappled with the question of horizontality – that is, the application of constitutional rights to “private” relations – have faced two issues: let us call these the boundary question and the transplant question (see, e.g., Chapter Three of the present author’s PhD Thesis; and here). In brief, and at the risk of being reductive, the boundary question asks: what principles must we deploy to define and limit the terrain of horizontal application, in order to preserve the integrity of private law, and avoid the “constitutionalisation” of all legal disputes. The transplant question asks: given the very different characters of the State and private parties, when can a constitutional right that is designed with a view to being enforceable against the State, be “transplanted” to apply to a private relationship (for example, the right to vote obviously cannot be transplanted; the right to privacy arguably can, with a few tweaks).

Since the advent of the 2010 Constitution, which makes the bill of rights horizontally applicable, the Kenyan courts (like their counterparts around the world) have grappled with both the boundary question and the transplant question (see, e.g., Chapter Eight of the present author’s PhD Thesis). With respect to the boundary question, one line of decisions has held that the existence of an alternate legal remedy (say, under private law) will be a good reason for the Court not to apply the Constitution horizontally (for an analysis and critique of this in terms of the doctrine of constitutional avoidance, see Walter Khobe). This is somewhat similar to Ireland’s constitutional tort doctrine, where some Irish courts have indicated that horizontality (via constitutional tort) will apply where private law is “inadequate” to deal with the issue (see e.g. W v Ireland (No 2) [1997] 2 IR 141 (HC); Hanrahan v Merck Sharp and Dohme [1988] ILRM 629 (SC); see also, the critique of this position by O’Cinneade). With respect to the transplant question, the doctrine is less clear: at times, the Courts have held that not all (private) disputes are fit for constitutional resolution, but in elaborating why, Courts have sometimes fallen back upon the boundary question, by noting that the existence of alternative legal remedies indicates that a particular dispute is not to be adjudicated through the prism of horizontality.

The Transplant Question

In Busia Sugar Industry, the Court considered both questions. It began with a terse but exhaustive summary of the constitutional position (paragraphs 75 – 77), laying out some of the issues discussed in the paragraph above. It then considered the issue of constitutional tort, and noted that a constitutional tort need not be applicable only against the State, but applies equally against non-State parties. While there has been some back-and-forth on this issue in previous judgments, in the Kenyan context, this is self-evidently correct: in Ireland, the constitutional tort doctrine was a judicial innovation where the Constitution was silent on the question of horizontality. In Kenya, however, Article 20 explicitly makes the Bill of Rights applicable horizontally. An action in constitutional tort, therefore, is one specific form of horizontal rights litigation under the aegis of Article 20 (i.e., it seeks compensation for wrongful breach of a constitutional right). Or, to put it another way, not all Article 20 horizontal rights application is equivalent to an action in constitutional tort, but all constitutional tort claims will fall within Article 20.

On the question of application to this case, however, the Court considered the nature of the claim: it was, essentially, a claim based on breach of legitimate expectations (i.e., the legitimate expectation that the statutory authority would act in accordance with legal procedures for registration and licensing). Musyoka J then noted that this legitimate expectation could not, by definition, be “transplanted” to the private sugar milling company (para 83). The “transplant question,” therefore, was decided autonomously, and by asking the question whether the right in question was capable of being transplanted into the private domain (it was not).

The Boundary Question

What of the boundary question? Respondent No. 2 argued that alternative remedies in private law existed for the Petitioner to pursue its claim. The Court began by framing this as an “exhaustion of remedies” issue, and noted that this would apply only where the alternative remedies existed outside the court system, and not within it (para 92). However, what the Respondent meant to argue, the Court noted, was a variant of the doctrine of avoidance: that is, the well-established principle that Courts should avoid deciding cases on constitutional grounds, where other grounds are available (para 93). Musyoka J then articulated the following response to the argument (paragraph 95):

I hold the view that this principle does not sit well with the application of the Bill of Rights horizontally. The horizontal application of the Bill of Rights enables the court, seized of a constitutional cause, to determine disputes that would have also been quite properly handled in ordinary suits. In John Atelu Omilia & another vs. Attorney-General & 4 others [2017] eKLR (Mativo, J), for example, the constitutional cause arose from a failed criminal prosecution, and the petitioners complained of violation of their rights, and sought compensation. There exist remedies in civil law for compensation for false imprisonment and malicious prosecution, and constitutional violations through botched criminal prosecutions, and related actions, can be redressed through the ordinary civil process. The petitioners, in that matter, had the option of seeking and obtaining equivalent relief through ordinary litigation, and the court had the option of avoiding determining the constitutional questions, and granting the reliefs sought, by referring the petitioners to the ordinary civil court. The principle of constitutional avoidance was not invoked, and the court proceeded to determine the constitutional questions, and to award compensation. Francis Mulomba Nguyo vs. Nation Media Group Limited vs. 2 others [2021] eKLR (W. Korir, J) is the other example. The cause was about breach of privacy, by a private entity, which could attract damages in tort for breach of privacy. That was also a constitutional violation or infringement. The court did not invoke the principle of constitutional avoidance, but entertained the claim, and awarded damages for violation of right to dignity and privacy. Perhaps, as a country, to avoid inconsistency, there could be a case to be made for embracing only one of these principles, and avoiding the other, for one negates the other.

This is extremely important, as it marks a clear, judicial departure from the position that the existence of an alternate remedy is a ground to defeat horizontal rights application. For various reasons, that proposition is unsatisfactory, and horizontal rights jurisprudence cannot evolve until it is abandoned.

Intersections with Private Law

With respect to the Court, however, its equation of the “alternate remedy” argument to the doctrine of constitutional avoidance might have been a little too quick. While the existence of an alternate remedy in private or non-constitutional ought not to defeat a horizontal rights claim, it certainly ought to inform the Court’s analysis. To take a reductive example, if A robs B, A is prosecuted under the penal code; it would sound faintly absurd if B filed a constitutional case against A on the ground of the deprivation of the right to property. This shows that the existence of non-constitutional law is not irrelevant to the question of horizontality: to reiterate the point made at the beginning of this essay, the boundary question is a question precisely because all jurisdictions realise the dangers of what Kumm refers to as “the total Constitution.”

In more conceptual terms, while a right is applicable horizontally, the details of its application often have to be worked out through legislation (for example, a Constitution that guarantees labour rights (such as, say, equal pay for equal work) does not obviate the need for a labour code that sets out the details of how those rights will be applied in the day-to-day context of industrial relations) – or, what Grigoire and Webber refer to as “legislated rights.” Now, one crucial advance that horizontality doctrine has made is to ensure that this legislation itself will be subjected to constitutional challenge if it does an insufficient job of protecting constitutional rights in the private context. This is why the Court was correct in discarding the position that the existence of a remedy in private law defeats a constitutional claim to horizontality. However, while correct, this does not completely answer the boundary question: for a complete answer, one must also examine whether the private law remedy is consistent with the rights framework established by the Constitution, as applicable to the private relationship (of course, with some necessary play in the joints for the legislature) (see, e.g., Chapter Five of the present author’s PhD Thesis). This, in turn, would – of course – require the Court to develop a theory of horizontality, or when – and to which – private relationships, the Constitution ought to apply as a threshold question (see the Rose Wangui Mwambo case for an attempt by the Kenyan Courts to do just that). Of course, that particular question was not before the Court in this case.

Conclusion

In his article on horizontal rights under the Kenyan Constitution, Brian Sang YK calls horizontality “a concept in search of content.” In its disaggregation and consideration of the boundary and the transplant questions, the High Court in Busia Sugar Industries takes one important step forward in infusing the concept with content. When we synthesise it with judgments such as Rose Wangui Mwambo – which set out an institutional approach to the threshold question of horizontal rights application – we may see the incremental emergence of a consistent and coherent doctrine of horizontality under the Kenyan Constitution. This would be a notable contribution to the ongoing, global conversation on the question of constitutional horizontal rights application.

Guest Post: Reasonable accommodation of religious beliefs at the workplace – An account from Kenya

[This is a guest post by Joshua Malidzo Nyawa.]

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Until 29 June 2023, the Kenyan judiciary had allowed the religious accommodation flower to bloom in schools and other government entities. However, on 29 June, the doctrine of religious accommodation at the workplace was ripe for discussion. In a groundbreaking decision, the ethos of the Bill of Rights reached the workplace. Justice Manani at the Employment and Labour Relations Court delivered a key message that workplaces are not immune to the constitutional project of transformative equality. Employees do not leave their religious rights at the door while signing an employment contract, and they should not be put to an untenable choice between following their faith and avoiding being sacked from work.

Background to the case: Scoline Anyango Ojung’a vs Healthlink Matcare LTD T/A Nairobi Women’s Hospital

The claimant is a practising Seventh-Day Adventist and observed Saturday as her day of worship. She was employed by the Respondent as a hospital manager until 5 April 2018. In light of her religious beliefs, she asked to be excused from her work on Saturdays. In 2016, she reached an arrangement with the respondent where she would only be working on the first Saturday of the month and commit the rest to her worship. For the Saturdays that she missed, she would compensate by working on Sundays since the hospital operated on Sundays. This arrangement subsisted until 21 February 2018 when the Respondent company was engaged in a budget-making process. The claimant’s branch was required to make adjustments to its proposal and submit its revised budget on 24 February 2018, which was a Saturday (Paras 7-8)

 The claimant worked with her budget committee and made the required adjustments. Since Saturday would be her day of worship, she requested one of her teammates to present the amended budget on her behalf. The claimant further stated that she informed the management of her absence through an official email and followed the email with a text message to a member of the Respondent’s management. However, her request was rejected by the management. She chose to obey her religious faith and did not attend the meeting. Consequently, her employment contract was terminated. The claimant argued that her termination violated her freedom to hold religious beliefs and the right to equality (Paras 9-12)

The Respondent neither disputed that the Claimant was a Seventh-Day Adventist nor the existence of the agreement that they entered into. They contended that the right to worship was not absolute but had to be practised reasonably to accommodate other needs whenever they arise (Para 18).  Further, budget-making is a critical process that could not be delegated to another team member. Second, the claimant was part of the meeting and she did not object to the proposed date (para 23). Third, the claimant did not seek permission to be absent but only sent an email and text stating that she won’t be present. Importantly, the Respondent argued that the claimant was not dismissed because of her religious beliefs:

25. The Respondent’s position is that the decision to terminate the Claimant’s contract was not due to her religious beliefs but her failure to heed work instructions and deliver on her mandate. Therefore, her claim that she was victimized on account of her faith is farfetched and untrue.

Freedom of religion at the centre of the dispute: Rejecting an asinine argument

Although the Respondents argued that the claimant was not dismissed because of her religious beliefs, Justice Manani rejected this outrightly. He held that the claim not stand based on the evidence. Simply, the claimant was dismissed from work because of her quest to exercise her religious belief of worshipping on Saturday. If the claimant had come to work on that Saturday and forfeited her day of worship, she would still be working at the Respondent’s company today. The judge expressed himself as follows

27. Although the Respondent asserts that the dispute between the parties had nothing to do with the Claimant’s religion, the evidence on record demonstrates that this issue was at the heart of their problem. It is true that the decision to terminate the Claimant’s contract arose from her failure to attend the budget meeting of 24th February 2018 and present her branch budget proposal contrary to the Respondent’s expectations. It is also clear from the evidence on record that the reason for the Claimant’s failure to attend the meeting was her religious convictions. As a practicing Seventh Day Adventist, she believed that 24th February 2018, a Saturday, was her day of worship. Therefore, the argument by the Respondent that the Claimant’s religion was not a factor that led to the ultimate separation of the parties is evidently misleading.

Comparatively, a similar obvious lie was made before the South African Labour Appeal Court in TDF where a claimant was dismissed for failure to attend a stock-taking exercise on  Saturday. In rejecting the lie, the Court held

[31] TFD’s contentions are not sustainable. Firstly, the dismissal would not have occurred if Faris had not been an Adventist. Had she not been an Adventist she would have willingly worked on a Saturday. The evidence suggests that her work performance was exemplary in all other respects. It is disingenuous to argue that her non-availability on Saturdays was the reason for her dismissal without having regard to the underlying reason for her non-availability. But for her religion, she could have worked on a Saturday and would not have been dismissed. Her religion was the dominant and proximate reason for her dismissal.

Justice Manani’s finding is commendable. Respondents usually attempt to conceal the real issue in dispute by taking the court through corners; most of the time, human rights arguments are lost. By centring the dispute around the right to exercise religious beliefs, Justice Manani grabbed an opportunity to enforce the Bill of Rights.

Limitation clause

The other argument advanced by the Respondents was that the freedom of religion is not absolute. The respondents were correct on this aspect. Article 32 of the Kenyan constitution provides for the freedom of religion. However, the same does not appear in Article 25 which provides for rights that cannot be limited. Justice Manani however proceeded to make an important point. He held that although the right is not absolute, it must be limited by law and even where there is a law, the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (Paras 30-31). He proceeded to dismiss the authorities relied on by the respondent by noting that the decisions did not consider Article 24, which provides for the limitation clause.  Further, Justice Manani concluded by holding that there was no law permitting the Respondent to limit the employee’s freedom of religion and the Respondent had not shown that such a limitation if it was there, it was reasonable and justifiable in an open and democratic society (para 47).

It can be said that Justice Manani correctly grasped the purpose of the limitation clause under Article 24, which is to create a culture of protection of human rights. Article 24 should not, therefore, be considered mechanically but must be given due weight. Finally, the obligation is on the Respondent to show that the limitation meets the test where a limitation fails the test, it is unconstitutional and a judge has no discretion but a duty to declare so.

Balancing two interests: Business interests vis-à-vis religious beliefs

At the heart of the dispute were two competing interests. While the claimant sought to enjoy her constitutional entitlements, the respondent sought to promote its business interests. In reality, companies hire employees to run their companies in a bid to make profits. Put differently, companies would at any time sacrifice human rights to promote their business interests. This is what the respondent argued in this case. Primarily, the respondent argued that budget making is very important and the claimant should have foregone her day of worship. Justice Manani however was quick to remind them of constitutional dictates. Justice Manani held that the Constitution obligates even private Respondents to respect and protect constitutional rights. He further held that it is for the respondent to balance its business interests with the claimant’s freedom of religion without prejudicing the latter (para 50). This finding is worth celebrating for various reasons.

First, the judge appreciated that the horizontal application of the Bill of Rights is now deeply entrenched in our constitutional architecture. Private entities are bound by the Constitution and are obligated to protect and respect the Bill of Rights. Employers cannot, therefore, run away from the constitutional dictates in their everyday operations.

Second, human rights provisions are permanent provisions and must be interpreted broadly. A human rights provision is not a  ‘minor peripheral’ but it is an important pillar of our constitutional project. This therefore means that business interests must be balanced with human rights, and business interests can only trump human rights where exceptional circumstances are shown to exist.

Third, ours is an all-pervasive Constitution, and the workplace is not an enclave. The effect of the Constitution therefore must be felt everywhere even at the workplace. Workplaces policies, rules and schedules meant to promote business interests must be within the confines of the Constitution. If they violate the Constitution or touch the Bill of Rights, they must be justified by the limitation clause. Simply, business interests cannot devalue the freedom of religion guaranteed by the Constitution.

Reasonable accommodation and undue hardship

Reasonable accommodation requires an acceptance of diversity within a society and none should be coerced into conforming with mainstream opinions, beliefs or way of life. It also requires establishments to go the extra mile to accommodate minorities, even if it means incurring a small difficulty. At the workplace, religious accommodation would require that an employer makes adjustments to the work environment or schedule so that an employer can practice her religion. In the case at hand, accommodation would simply mean that the Respondent would be required to move the employee’s day of work from Saturday to Sunday. She was agreeable to this. Justice Manani, therefore, found that failure to reasonably accommodate the claimant was discriminatory and infringed on the claimant’s freedom of worship.

The fundamental point made by Justice Manani is that it is unconstitutional for an employer to put an employee in the unfortunate situation of having to choose between her freedom of religion and her employment. Most importantly however is the inescapable conclusion that such a situation violates the dignity of the employer. The right to dignity requires employees to voluntarily make a choice rather than deciding by feeling obligated to do so. Such a choice does not respect the self-worth of the employee.

Undue hardship

The decision does not however mean that reasonable accommodation must be pursued at all costs. A respondent would be excused from reasonably accommodating if doing so would lead to undue hardship. The employer can show that reasonable accommodation is not possible because it causes undue hardship if the costs are more than the ordinary business costs. Employers however need to remember that the test is that of proportionality, both horizontally and vertically. A claim of undue hardship must meet the proportionality inquiry. This is the language of the limitation test. It will not be met if the employer mainly mentions a legitimate business rationale.  The test is that ‘it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty’.

Conclusion

The important lesson from this decision is that human rights will be meaningless if they are not enforced by courts in all sectors. The culture of human rights promoted by transformative constitutions requires vigilant judges such as Justice Manani who are ready to remind non-state and “private” agencies of their obligations to respect and promote human rights. Second, business interests must bow to the dictates of the Constitution. Although companies exist to make profits, these profits cannot be made at the cost of stripping employees of their constitutional entitlements. Companies are constitutionally required to reasonably accommodate employees’ religious beliefs at the workplace by not trivializing the rights of minorities.

Equality in Marriage and the Limits of Transformative Constitutionalism: The Kenyan Supreme Court’s Judgment in Ogentoto vs Ogentoto

Article 45(3) of the Kenyan Constitution stipulates that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” This potentially radical provision brings equality into the very heart of the private sphere: that is, to the marital relationship. Of course, the devil is in the detail: one ongoing controversy has been whether – and to what extent – Article 45(3) applies to property claims at the time of the dissolution of a marriage (see Ch. 7 of the present author’s PhD Thesis).

The roots of the controversy lie in the patriarchal structures of our world. It is an incontrovertible fact that in most societies, men hold a disproportionate share of immovable property (for the gendered skew in Kenya, see here). The reasons for these are both historical (dating back to times when women were legally barred from owning property) and current (structural barriers to women acquiring the resources to obtain property). It is also an incontrovertible fact that within marital relationships, division of labour is overwhelmingly gendered, even in a fast-changing world: statistics show that a significant share of (unremunerated) domestic labour continues to be performed by women. For our purposes, this has a natural, knock-on effect upon financial earnings within marital relationships. Subject to exceptions, at a structural level, financial and non-financial contributions towards a household skew along a gendered axis. This, in turn, means that when it comes to the acquisition of property during the course of a marital relationship, again – at a structural level – the financial contributions of the male spouse tend to be greater than that of the female spouse.

If, therefore, at the time of the dissolution of a marriage, property is divvied up solely on the basis of who has legal title to it, it is clear that such a solution will only serve to exacerbate the gendered inequalities that structure a marriage: women come into a marriage at a disadvantage, this disadvantage persists through the marriage, and then becomes the cause for further disadvantage if the marriage ends, and property needs to be divided: a vicious cycle.

What, then, is to be done, if “equality within marriage” is to be meaningful? One solution – prevalent in some jurisdictions – is known as “community of property,” and simply requires a straight, 50-50 split of matrimonial property upon the dissolution of marriage (this solution also carries with it some interpretive problems, such as defining what constitutes marital property). At the other extreme is what we discussed in the above paragraph – only financial contributions are considered towards determining legal interest in matrimonial property. And in between these two solutions, there is a spectrum of different models and approaches: for example, explicitly factoring in non-monetary contributions such as care work, domestic work, and emotional labour (see e.g. Kenya’s Matrimonial Property Act of 2013); having a 50-50 split as a default, which will not apply in cases where it is clearly unconscionable; factoring in the length of the relationship; and so on.

In Joseph Ombogi Ogentoto vs Martha Ogentoto (decided today), the Supreme Court of Kenya located itself somewhere near the middle of the spectrum described above. The case was complicated somewhat by the fact that it was filed before the 2013 Matrimonial Property Act came into force, and there was therefore a question of whether it was governed by the old 1882 Matrimonial Property Act (which did not provide for non-monetary contributions), or the new one. The Supreme Court held that while the 1882 Act was applicable, so was the 2010 Constitution of Kenya (as Article 45(3) applies directly to private parties). The question then squarely arose: what was the meaning of the phrase “equal rights … at the dissolution of a marriage.”

Positions from across the spectrum that we have discussed above were canvassed before the Supreme Court. The Court held that (a) Article 45(3) did not require an absolute rule of a 50/50 split at the time of the dissolution of marriage, and (b) the respective shares of the property would have to be determined on a case-to-case basis, depending upon the actual contributions of each spouse.

As a principled point, the Supreme Court noted that equality within marriage did not entail a redistribution of property rights. With the greatest of respect to the Court, the arguments advanced above make it clear that if you want to have genuine equality within marriage, you do need to reimagine property rights, at least to some degree: as we have seen, existing patterns of property ownership, when placed within patriarchal structures, exacerbate inequalities instead of mitigating them. Indeed, to some degree, this reimagining has already happened in the 2013 Matrimonial Property Act, where childcare, domestic work, and companionship are all treated as “contributions” towards the acquisition of matrimonial property, no matter in whose name and with whose money it is acquired. Another form of reimagining was put forward by the Law Society of Kenya (acting as amicus), which asked the Court to start with a default presumption of a 50/50 division, which could then be departed from in exceptional circumstances. In my view, this would have been a solution that would have both recognised the structure gendered inequalities within marriage, and allowed judges the discretion to mold relief where specific cases did not fall within that structure. However (subject to a caveat I shall come to later), this interpretation did not find favour with the Court.

One can see, therefore, in this judgment, the limits of transformative constitutionalism when it comes to the private sphere, limits that are articulated in the Court’s hesitation to tamper too greatly with the legal regime of property. This is notable, especially because in other contexts, the Court has brilliantly reimagined property rights in the context of transformative constitutionalism: think, for example, of the remarkable judgment in William Musembi, that did so in the context of evictions and the right to housing. Perhaps marriage and the family, however, remains the last hold-out against transformative constitutionalism’s impulses towards democratising the private sphere. Indeed, this is particularly poignant when we consider Dr Victoria Miyandazi’s argument, in her book, Equality in Kenya’s 2010 Constitution (2021), that the intention behind Article 45 was, inter alia, to address “harmful practices such as … unequal claims to matrimonial property upon divorce.” (see pg 42)

Now, having held the above, a lot would turn on what the Court would say about the burdens and standards of proof when it comes to the question of proving contribution. Here, there appears to be some internal tension within the judgment. At certain points, the Court seems to suggest a high standard of proof; citing the previous case of Echaria vs Echaria, for example, it notes that specific contribution has to be assessed towards a specific share (paragraph 78) (one wonders how that can be done for something like emotional labour, or companionship). The Court also appears to approve Echaria’s finding that the performance of “domestic duties” would not entitle a spouse to a beneficial share in the property (paragraph 83), although one expects that this proposition would certainly not be tenable within the statutory framework of the 2013 law. The overall drift of these observations appears, however, to somewhat devalue non-monetary contributions in determining beneficial interests in matrimonial property, and placing a higher burden of proof upon what will overwhelmingly be female spouses.

At the same time, however, other parts of the judgment appear to endorse a more egalitarian perspective. In paragraph 94, the Court correctly notes:

Equity further denotes that the other party, though having not contributed more resources to acquiring the property, may have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property. This is what amounts to indirect contribution. Equity therefore advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.

In the next paragraph (para 95), the Court notes:

Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution is indirect, but nevertheless has in one way or another, enabled the acquisition of such property amounts to significant contribution.

One must note the breadth of the term “in one way or another.” Indeed, in the same paragraph, the Court approvingly cites the English case of Burns vs Burns, which listed childcare and domestic work as indirect contributions (contrary to the observations in Echaria, which the Court also appears to approve of), and the judgment in White vs White, which specifically observed that “there should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

So, which of the strains of thought is dominant in the Court’s judgment? Interestingly, towards the very end, the Court considers two Canadian judgments that advanced the LSK’s proposition of a default 50% rule subject to departure in exceptional cases, and then, in paragraph 103, it notes that:

In agreeing with the above [Canadian] decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013.

Now I would submit, with respect, that this formulation brings the Supreme Court very close to the LSK’s stated position of a default rule of 50%, that a judge could depart from in cases of unconscionable circumstances. The Court does not specifically use that language, but phrases such as “general assumption” and “one way or another” do suggest that in the application, the starting point should be one of equality. For the reasons advanced above, I suggest that this is the true import of Article 45(3) and equality within marriage, in the context of transformative constitutionalism. And, what is more, the Court goes on to agree with the Court of Appeal’s 50/50 division of property in this case, and dismisses the appeal against the CoA’s judgment?

So, where do we stand? While on the one hand, it would perhaps have been ideal if the Supreme Court had laid down a clear rule that the default is equal division, with the burden lying upon the party who wishes to depart from it, there is enough in the judgment to suggest that on a case-by-case basis, that is roughly the approach that ought to be followed. In this context, the next terrain of battle will be litigation around how, precisely, one understands the term “non-monetary contributions” under the 2013 Act, and how one goes about establishing them (especially for terms such as “companionship”, because how can you possibly quantify “companionship”?). Indeed, in a brilliant judgment from 2021, the High Court of Kenya at Nakuru has already initiated this analysis, noting that childcare and domestic work entitled the female spouse to a 50% share of the matrimonial property; that needs to be carried forward. There will also be parallel struggles about the very definition of what constitutes marital property, but that is a different matter. And it will probably be in the implementation – and the future interpretation of today’s Supreme Court judgment in concrete family law disputes – that the interface between equality, marriage, and transformative constitutionalism in Kenya will play out.

Kaushal Kishor, Horizontal Rights, and Free Speech: Glaring Conceptual Errors

There is an old adage that if you want to arrive at the right answers, you have to first ask the right questions. The Supreme Court’s judgment judgment earlier this month in Kaushal Kishor vs Union of India reflects another truth: that if you want to arrive at answers that mean anything at all, your questions have to first make sense.

Ostensibly, this judgment of a Constitution Bench of the Court deals with crucial constitutional issues around the limits to freedom of speech and expression, and the horizontal application of fundamental rights. If this was the only information you had about Kaushal Kishor, you would imagine that the case arose out of a factual matrix where perhaps an institutionally powerful non-State actor violated an individual’s constitutional rights – a case such as Tomlinson vs Television Jamaica (Jamaican Court of Appeal), for instance, or Khumalo vs Holomisa (South African Constitutional Court). In these cases, the judiciaries of their respective countries developed the law on horizontality and free speech because the disputes before them raised questions about horizontality and free speech.

What was the dispute in Kaushal Kishor vs Union of India? To understand this, you will first have to go back to August 2016 – the halcyon days of Chief Justice Dipak Misra’s Court – when the SC admitted a petition seeking action against a UP government minister, who had claimed that a gangrape in Bulandsahr was a “political controversy.” The Court framed four “questions” for resolution, which – as I pointed out at the time – were vague to the point of being incoherent. The government minister in question then apologised to the Supreme Court. The matter ought to have rested here, except that in October 2017, the case – now without a lis – was referred to a Constitution Bench of the Supreme Court, i.e., a five-judge bench that is constituted only when a “substantial question of law” with respect to the interpretation of the Constitution has arisen. During this time, the Court had also anointed Messrs. Fali Nariman and Harish Salve, and the genesis of what finally became the judgment in Kaushal Kishor can be traced back to one of the “questions” submitted to the Court by Mr. Nariman, namely, whether obligations under Article 21 would apply to non-State parties.

The matter was then buried for a couple of years, as often happens at the Supreme Court, until its sudden resurrection in mid-2019. At this point, the following five questions were framed by the Constitution Bench:

1. Are the grounds specified in Article 19(2) in relation to which reasonable restrictions on the right to free speech can be imposed by law, exhaustive, or can restrictions on the right to free speech be imposed on grounds not found in Article 19(2) by invoking other fundamental rights?
2. Can a fundamental right under Article 19 or 21 of the Constitution of India be claimed other than against the ‘State’ or its instrumentalities?
3. Whether the State is under a duty to affirmatively protect the rights of a citizen under Article 21 of the Constitution of India even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency?
4. Can a statement made by a Minister, traceable to any affairs of State or for protecting the Government, be attributed vicariously to the Government itself, especially in view of the principle of Collective Responsibility?
5. Whether a statement by a Minister, inconsistent with the rights of a citizen under Part Three of the Constitution, constitutes a violation of such constitutional rights and is actionable as ‘Constitutional Tort”?

As I had written at the time, while questions (4) and (5) had some tenuous connection to the original dispute, the first three questions were simply general excursions into constitutional philosophy (see “A Very Strange Constitution Bench“, October 27, 2019). I had also warned that this kind of judicial buccaneering never ends well, because these questions are simply too complex, too multi-layered, and too poly-centric to admit of resolution in the abstract: judiciaries all over the world have spent decades developing the law on these issues, incrementally, and in response to the concrete disputes that are brought before them. Shortly after, in a guest post, Anubhav Khamroi pointed out that the first question had already been decided by a coordinate bench in Sahara vs SEBI, thus making Kaushal Kishor not only an academic exercise on this point, but an unnecessary academic exercise too boot.

The matter once again lay buried for three years, until it was pulled out a second time during CJI Lalit’s tenure, assigned to a bench, and then heard and decided. The Court split 4-1, with Nagarathna J in partial dissent. Some of the conclusions in Kaushal Kishor have already been critiqued on this blog (see “Who Killed Article 12?“). This piece sets out a few additional arguments.

Horizontality

Before looking at the Court’s analysis, it is important to get a few concepts straight. When we look at the application of constitutional principles to private, non-State parties, there are four different approaches, which must be kept conceptually distinct (for an explanation, see “Horizontality: A Schema” on this blog, and the present author’s PhD thesis. These are as follows:

1. The State Action doctrine refers to an approach where you ask whether a private party sufficiently resembles the State, for its actions to be attributable to the State. Different tests are used in different countries: the doctrine itself originated in the US, is applied in various jurisdictions such as South Africa, and in India, it takes the form of the extensive case law on the interpretation of Article 12 of the Constitution (see the blog series “What is the State?“, from 2014)
2. Positive obligations refers to an approach where rights are deemed not only to have negative content – i.e., requiring the State to refrain from doing something – but also, positive content – i.e., requiring the State to act affirmatively to protect your rights. On some occasions, positive obligations arise in the context of State omission in cases where certain private parties are violating the rights of others. The classic example here is Vishaka.
3. Indirect horizontality refers to an approach where private law is subjected to constitutional scrutiny, and is interpreted or modified accordingly. For example, in the famous New York Times vs Sullivan, the US Supreme Court modified the common law of defamation to bring it in line with the constitutional guarantee of free speech.
4. Direct horizontality refers to an approach where private conduct is subjected to constitutional scrutiny. For example, Article 15(2) proscribes discrimination by any person against any other person, in certain specified contexts.

Kaushal Kishor commits an elementary mistake by repeatedly bunching these concepts together. This is evident in its opening discussion of US law from paragraphs 50 to 54), where it conflates The Civil Rights Case (state action), New York Times vs Sullivan (indirect horizontality), and Shelley vs Kraemer (state action, with the judiciary deemed to be state). It is evident in its consideration of Irish constitutional law (paragraph 55), where it mixes up positive obligations with horizontality. The majority states that Irish constitutional law is on “the opposite end of the spectrum” from US constitutional law on the question or horizontality. This is fundamentally incorrect: Irish constitutional law has developed a restrictive account of horizontality under the constitutional tort doctrine (more on that anon). A few paragraphs later, the majority cites the Irish Supreme Court case of Meskell to hold that under Irish constitutional law, “full horizontal effect” has been given to rights such as freedom of association, freedom from discrimination and the right to livelihood (paragraph 57). This is also incorrect: it is, in fact, a criticism of Irish constitutional law that its horizontal rights doctrine is narrow and limited (see, e.g., Banda). The majority’s discussion of South African constitutional law then conflates horizontality under the Constitution with horizontality under statute (paragraph 61), and its awareness of South African jurisprudence on horizontality appears to end at 2011 (for reference, the most recent South African judgments on horizontality, which significantly developed the law, were handed down in 2021) (paragraph 64). Even its analysis of the law it does seem to be aware of is ill-considered: the majority states that the South African Constitutional Court in Juma Masjid took horizontal effect to “an extreme”: if anything, the decision in Juma Masjid is a fundamentally conservative one, that firmly places horizontal rights subordinate to vertical rights against the State. And then we finally have the UK and the ECHR (paragraphs 66 – 70), where every example the Court takes is grounded in positive obligations, and not horizontality.

Now, nobody was forcing the majority in Kaushal Kishor to undertake a global, comparative analysis of horizontality. However, if the majority elected to do that, then it bore a minimum obligation to (a) get the concepts right, (b) get the law right, and (c) provide an up-to-date picture of the law. The Kaushal Kishor majority manages to fail all three requirements.

The majority then comes to Indian law, where once again the same set of confusions is rife. In paragraph 76, the majority claims that it is going to examine a set of cases that extended the application of fundamental rights to non-state parties. It then indiscriminately summarises sixteen cases, some of which were about positive obligations (e.g. Vishaka vs State of Rajasthan), some of which were about the meaning of “State” (Zee Telefilms), some of which were about direct horizontality (IMA vs Union of India), and some of which are utterly irrelevant to the question altogether (the RTE judgment). Having slashed and burned its way through thus jurisprudential forest, the majority then notes “that all the above decisions show that on a case-to-case basis, this  Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator.” (paragraph 77) Of course, the decisions cited do nothing of the sort. The majority then bizarrely cites a passage in Puttaswamy that goes against its own position (something picked up on by Nagarathna J in her dissent), as it notes that common law rights are horizontally applicable, while fundamental (constitutional) rights are vertically applicable. The majority says that Puttaswamy has answered a “part of the question” (it does not explain how), and then triumphantly concludes, in paragraph 78:

A fundamental right under Article 19/21 can  be enforced even against persons other than  the State or its instrumentalities.

Like the title of the famous Borges’ short story, this is both everything and nothing. The Court’s “declaration” that Articles 19 and 21 apply horizontally is meaningless and incoherent without further clarity. It should be immediately clear that not every violation of Articles 19 and 21 (or, for that matter, other constitutional provisions) can yield a constitutional remedy through writ proceedings (a point that is hammered home by Nagarathna J). To take a basic example, if referee Mike Riley takes a bribe to award a wrongful penalty to Manchester United against Arsenal, the remedy is to proceed against him under criminal law, and not under the constitutional guarantee against manifestly arbitrary treatment. Similarly, if X enters into a contract with Y and then refuses to pay Y for services rendered, you proceed against X under contract law, not for breaching your right to livelihood under Article 21. “Unbounded” direct horizontality is an obvious non-starter, because it will turn all of existing private law into constitutional adjudication, creating havoc both in substance and in procedure. It is precisely for this reason that Courts elsewhere – whether it is Ireland, or South Africa, or Kenya, or even the United States – have developed doctrine incrementally, and arising out of concrete cases, and not as abstract philosophical exercises. And it is precisely for this reason that the majority ought to have refrained from answering this question in the abstract.

There is, however, a second – and more conceptual – problem with the majority’s approach (again, noted by Nagrathna J in her dissent). If you take up Part III of the Constitution, you will immediately see that where the Constitution intends for a fundamental right to apply horizontally, it explicitly provides so (Articles 15(2), 17, 23, and 24). This is structurally different from, for example, the South African Constitution, where Section 8(2) states: “a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right” (see also, Article 20, Constitution of Kenya). Unlike the South African Constitution, therefore, where any provision of the Bill of Rights can potentially apply horizontally (subject to doctrinally-placed constraints, which is how the South African law on horizontality has developed), the Indian Constitution has specific carve-outs for domains where rights apply horizontally. Presumptively, therefore, for other rights, there is no horizontal application available. Now, the majority does not even engage with this argument, let alone deal with it. It provides no reasoning whatsoever to explain why it is departing from the obvious result of an eyeball test of Part III’s text and structure; and the judgments that it relies upon – as pointed out above – do not support the proposition that it advances.

All this is unpardonably shoddy.

Miscellany

There is little profit in dwelling upon other parts of the judgment, although a few brief points may be made. The third question involves a literal restatement of existing law, which the Court does (the answer is “yes”, going back at least to Vishaka). The fourth question is a basic, first-principles articulation of the simple point that a minister does not always speak for the government. Conceptual confusion returns in the fifth question, where the majority confuses torts by government actors with constitutional tort, and embarks on a thoroughly irrelevant excursion into tort law. As Nagarathna J correctly points out in her opinion, the reason why it is called constitutional tort is because it incorporates the concept of damages/compensation from tort law; a constitutional tort involves the breach of constitutional rights by State actors where compensation is an appropriate remedy (even here, there is some degree of conflation, as constitutional tort in Ireland means something else), not a common law “tort” committed by a State actor.

And finally, there is confusion even in the majority’s consideration of Article 19(2). The majority once again seems to conflate two conceptually distinct points. The first point is that the Court – obviously – cannot engraft fresh exceptions to the right to free speech, beyond the eight sub-clauses already present in Article 19(2). This the Court (correctly) affirms in paragraph 29. The second point is that there will inevitably be occasions where rights under Part III will clash, and the Court will have to balance clashing rights through a principled and doctrinally sound approach. Ostensibly while analysing this second point, the majority cites a series of cases where the courts have done precisely this – sought to balance the claims of two competing rights (e.g., free speech and privacy). Noting that “tools” exist to do so, the majority then comes right back, in its conclusion, to the statement that “under the guise of  invoking other fundamental rights or under the guise of  two fundamental rights staking a competing claim against  each other, additional restrictions not found in Article  19(2), cannot be imposed on the exercise of the right  conferred by Article 19(1)(a).” But what does this mean? When I argue for restricting your right to free speech because it is impinging on my privacy, I am invoking privacy (not found in Article 19(2)) to restrict the scope of your right to free speech. Also, where does this leave judgements such as the 2016 criminal defamation verdict, which explicitly invoked reputation as a ground to justify criminal defamation as a limitation upon free speech? Once again, there is no engagement with these thorny issues in the majority’s judgment; in the dissent, at the very least, there is, although Nagarathna J.’s conclusion that certain kinds of speech are outside the ambit of Article 19(1)(a) altogether is, itself, a somewhat perilous idea, as it involves assessing the comparative worth of forms of expression, without adequate thought for the structure of Article 19(1)(a) or the consequences that follow.

Conclusion

Kaushal Kishor is a salutary lesson in judicial restraint when it comes to dealing with abstract philosophy instead of a concrete lis. Horizontality is one of the most complex and complicated issues in contemporary constitutionalism, involving a multitude of overlapping questions about the nature of the State, institutional power asymmetries, public and private law, forms of remedies, and so on. These questions can only be considered in the concrete, in a situation where a rights-bearer and a rights-violator are before the Court, and the issue of horizontal rights applicability assumes tangible form. Without that, as we have seen, there is confusion, and what is worse, a muddying of previously (relatively) clear waters. One can only hope, with Kaushal Kishor, that when future courts look at the majority, they find it simply incapable of application, and that with the passage of time, the judgment slips into judicial desuetude.

Guest Post: Who Killed Article 12? – Horizontal Rights and the Judgment in Kaushal Kishor

[This is a guest post by Ishika Garg and Abinand Lagisetti.]

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Introduction

On 3rd January 2023, a Constitution Bench of the Supreme Court delivered its judgement in the case of Kaushal Kishor v. The State of Uttar Pradesh. One of the questions before the Court was whether fundamental rights under Articles 19 and 21 of the Constitution can be claimed against parties other than the ‘State’ or its ‘instrumentalities. Essentially, the question revolved around the extent of and the limitations within Article 12 of the Constitution. Surprisingly, the majority in this case went on to hold that:

A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.

Talk about starting the year with a bang! The implication of this holding is that the rights under Article 19 and 21 are henceforth to be considered horizontal in nature, and would thus be available against private individuals. This begs the question of whether the decades-long jurisprudence that the courts have developed in delineating the scope of the ‘State’ under Article 12 was all in vain. In this post, the authors shall first attempt to unpack the line of reasoning followed by the majority in arriving at its conclusion. Thereafter, the post shall outline the approach that the Bench should have instead adopted when deciding the question under reference before it. Lastly, the authors shall analyse the potential impact that this judgement shall have on future cases involving a similar question of law, and demonstrate how the same is undesirable.

Deconstructing the Majority: A Search for Reason

The majority begins with a rather unnecessary reproduction of the jurisprudence on horizontal and vertical application of fundamental rights in different jurisdictions. Unfortunately, the only role this reproduction seems to have served is that of a page-filling exercise. Regardless, two limbs of reasoning that enabled the majority’s conclusions can be culled out. At the first level, the majority argues that over a period of time, there has been a jurisprudential shift in India in favour of the horizontal application of all rights under Part III. This is evident from the following extract from the judgement:

To begin with, this Court was weary of extending the enforcement of fundamental rights against private individuals. But this reluctance changed over a period of time.

At this juncture, it becomes important to clarify that the problem that this post seeks to address is not of horizontal rights in general. Rather, the issue arises when we try to horizontally apply Articles 19 and 21 in specific. Indeed, there can be no doubt that some fundamental rights, such as the right against untouchability, can be and have been, horizontally applied. However, the very language of Articles 19 and 21 exclude such an application. This is clear from the dictum in the case of P.D. Shamdasani v. Central Bank of India. In that case, the Court held that the phrase “except by procedure established by law” in Article 21 necessarily excludes its vertical application. Similarly, it noted that the language and structure of Article 19 was intended to only cover cases involving some form of state action.

While acknowledging this thread of reasoning, the majority proceeds to discuss judgments, which it believes portray an inclination towards the horizontal application of these fundamental rights. Of all the cases that the majority has discussed, only two cases could be construed to lend support to its conclusion: Bodhisattwa Gautam and MC Mehta. All the other cases directly involve a state entity or an entity undertaking a public function akin to that of a state or involve a right other than those under Articles 19 and 21. Even the aforementioned two cases have been erroneously relied upon by the majority. This is for the reason that the relief awarded in each of these cases was not linked in any way to the status of the violator of the fundamental rights in question (private or public), but was in fact connected either to a statutory remedy to that effect or to a remedy in tort. For instance, in MC Mehta, the remedy finally awarded to the petitioners against a private body was so done by virtue of the existence of the well-established environmental law principle of ‘polluter pays’. Likewise, in Bodhisattwa Gautam, the compensation awarded was a result of an existing remedy by way of a Central Government scheme.

The second level of reasoning employed by the majority is dependent upon its interpretation of the applicable test under Article 12. As per them, the test has transitioned in the following manner:

…. from “State” to “Authorities” to “instrumentalities of State” to “agency of the   Government” to “impregnation with Governmental character” to “enjoyment of monopoly   status conferred by State” to “deep and pervasive control” to the “nature of the   duties/functions performed”.

Through this excerpt, the majority seems to suggest that the test under Article 12 has been watered down by judicial decisions over the years. However, nothing could be farther from the reality. Post the decision in Ajay Hasia, requirements for a body to qualify as a ‘State’ under Article 12 have come to be crystallised in cases such as PK Biswas (as shall be discussed later). Resultantly, the test under Article 12 has only become stricter. Regardless, this excerpt serves as the majority’s recognition of the existence and relevance of a test under Article 12, whatever may be the standard. However, the final conclusion reached in this case stands in opposition to this acknowledgement. If fundamental rights are indeed enforceable against all private entities, then there would be no point in looking to Article 12 to see if the entity qualifies for such enforcement in the first place. In simple terms, the conclusion that the majority reaches not only presupposes the existence of no test but also invisibilizes Article 12 as a whole. Crucially, there is a clear absence of any reasoning to justify such a logical jump from the existence of some test to the existence of no test.

The Road Not Taken: A Constitutionally Compliant Alternative

Despite acknowledging the existence of a test under Article 12, the majority fails to meaningfully engage with it. It is this gap that provides a space to outline an alternative approach which the Court could have instead adopted. The authors propose that there is a two-fold procedure that the majority should have looked at in response to the question under reference before it. First, any question of enforcement of rights under Article 19 and 21 against any individual or entity should necessarily be answered through an enquiry into whether the individual or entity falls within the scope of Article 12. In establishing this, perhaps the most widely used test would be that established in the case of PK Biswas. While the elements of this test have been recounted in great detail on this blog earlier, the essence of it can be captured through the following question: Whether the body is financially, functionally and administratively dominated by or under the control of the Government? If this question is answered in the affirmative, then the body shall fall within the scope of Article 12. Even if the answer is in the negative, there is yet another level of scrutiny that may be conducted. This brings us to the second prong of our procedure.

While a body which does not pass the PK Biswas test would not be open to claims under Article 32 of the Constitution, the route of Article 226 continues to remain open. Article 226 vests in the High Court the power to issue orders and writs to “any person or authority” for the “enforcement of any of the rights conferred by Part III, and for other purposes.” The logical implication is that it is possible to hold a non-State body accountable for a substantive Part III violation even without invoking Article 32. An example of such an application is found in the case of Zee Telefilms. In that case, the status of BCCI under Article 12 was in question. Although BCCI was held not to be a ‘State’ within the meaning of Article 12, the Court held that the aggrieved party could nonetheless seek redressal through Article 226, given that BCCI discharged functions of significant public importance. Additionally, the Court supported the Article 226 route in that case because the BCCI was discharging such functions exclusively. Thus, as has been previously pointed out by a post on this blog, to avail of the option under Article 226, the aggrieved party must consider: first, the nature of the function being performed by the violator; and second, whether the violator is performing such function exclusively. In light of such precedent, the Court in the present case should have evolved the following method of enquiry instead of jumping the gun:

1. To check whether the body against whom fundamental rights under Articles 19 and 21 are sought to be enforced falls within the scope of Article 12;
2. To check if the body in question can be made amenable to writ jurisdiction under Article 226 by virtue of it fulfilling the two prerequisites of nature and exclusivity of its functions, if the first question is answered in the negative.

However, in the present case, there seem to have been no attempts on part of the majority to even consider, let alone establish, such layers of enquiry. Instead, the court directly moves on to the surprising expansion of Article 19 and 21 rights against all private bodies. Even if one turns a Nelson’s eye to such ignorance for a moment, a more foundational issue remains to be addressed. As Justice Nagarathna points out in her dissenting opinion, before the invoking the writ jurisdiction of a court, a preliminary enquiry into the existence of any alternative statutory or common law remedies must be embarked upon. This idea stems from the principle that if an effective remedy is found to exist that can adequately tackle the rights violation in question, then writ jurisdiction cannot be invoked. Given this limitation, an additional level of enquiry inevitably comes to precede the two-step procedure outlined above. This level would essentially look at whether any statutory remedies already exist in relation to the act for which a violation of fundamental rights is being claimed in the first place. Simply put, only in the vacuum of any such remedies should the Court get into the two stages of enquiry relating to the status/function of the body against whom the rights violation is claimed.

Through the Looking Glass: An Eye to the Future

As until now, all claims involving infringements of Articles 19 and 21 required the infringer to meet the requirements of Article 12. The immediate impact of doing away with such a condition would be the countless private disputes that would now flood the writ courts. In addition to overburdening the writ courts, such private disputes would also now require the writ courts to adjudicate upon disputed questions of fact. This would be a stark departure from the well-established practice of writ courts not entertaining such questions. Notwithstanding this, let us for a moment, pause and consider what rationale the Court might have had in reaching the overbearing conclusion that it did.

In the authors’ opinion, the Court’s attempt has been to spread its net wide to entrap those entities which violate fundamental rights of individuals but fail to meet the requirements of Article 12. One class of such entities would be social media giants. While such a rationale might have a plausible logical goal, it would undermine the existing legal framework as shall be demonstrated below. The ongoing Facebook-WhatsApp litigation before the Supreme Court serves as a reminder of the same.

The case involves a challenge to the data sharing agreement between Facebook and WhatsApp on the ground that it violated the users’ right to privacy and freedom of speech. The question that arises is whether such rights can be enforced against such non-state actors. While the majority opinion answers this question in the positive, an application of the aforementioned two-fold test reaches the opposite conclusion. First, neither Facebook nor WhatsApp, being independent private actors, are financially, administratively and functionally under the control of the Government. Given that they do not meet the requirements of Article 12, we shall now proceed to the second level of enquiry. What must be considered is whether the nature of the functions and the exclusivity of the functions render the platforms amenable to writ jurisdiction under Article 226. The nature of the functions discharged by both Facebook and WhatsApp i.e., expression and communication, are undeniably of significant importance to the public. However, the provision of such service, by no means, is the exclusive domain of just Facebook and WhatsApp. Multiple other actors such as Twitter and Telegram flood the field. Thus, neither Article 32 nor Article 226 provide a viable recourse against these entities.

Importantly, what the majority fails to consider is that the inapplicability of Part III remedies does not exhaust common law remedies that still continue to be available to aggrieved parties. As recognised by Justice Nagarathna in her dissent, there exists a concurrent remedy under common law that can be brought against non-state actors. For instance, as observed by the Court in Puttaswamy, the contents of the right to privacy under Part III and under common law are identical. The only difference being that, in cases involving non-state entities such as Facebook and WhatsApp, an action for the violation of such a right would now lie before an ordinary court. Alas, these nuances too have received no engagement from the majority, setting a dangerous precedent for the future.

Interestingly, no other jurisdiction in the world allows for such unbounded direct horizontal application of rights against non-state actors. Even jurisdictions that constitutionally recognise the horizontal application of rights, do so with certain limitations. For instance, Article 20 of the Kenyan Constitution allows for both direct and indirect horizontality. However, as highlighted by Brian Sang in his work, subsequent judicial developments such as Isaac Ngugi have made this horizontality contingent on the nature of the right and the circumstances of the case in question. Similarly, Article 8(2) of the South African Constitution expressly qualifies the direct horizontal application of rights on the basis of the nature of the right and the corresponding duty imposed by it. The basis for the Indian Court’s misadventure into uncharted territory thus remains a mystery.

Guest Post: Sabarimala V 2.0 – Religious Freedom and Non-Discrimination Revisited

[This is a guest post by Shreyasi Singh.]

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Recently, a petition before the Kerala H.C. challenged the constitutional validity of the Travancore Dewaswom Board notification, inviting applications only from Malayala Brahmins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples. The notification has been mainly challenged on the grounds of the violation of Articles 14, 15(1), 25(2), and 16(2) of the Constitution. Previously on this blog, there have been critiques of the application of the Essential Religious Practice Test, hereinafter ‘ERP’, as infringing upon the religious autonomy of religious institutions. Rather than going by that path, for the course of this article, I shall limit my analysis to the Anti-Exclusion principle vis a vis Justice Chandrachud’s question: ‘what was the legacy of injustice that the Constitution sought to acknowledge and then transform’?  

Four questions come to my mind while examining the same : 

Ques 1. What should be the governing principle for balancing the Religious freedom of groups with that of individuals? 

Ques 2. Whether the governing principle applies equally to religious denominations under Article 26?  

Ques 3. Whether the governing laws of the Anti-Exclusion Principle cover religious institutions, or is there a restriction on the application of the rights? 

Ques 4. If the answer to the above question is yes, what alternatives, if any, does the Constitution provide for balancing the fundamental right to religion of individuals, that of religious denomination vis a vis the transformative vision of the Constitution?

I shall take each of these questions in the subheads below. I start by tracing the judicial development of the Anti-Exclusion principle and its extension to religious denominations. In the second half of this article, I shall first answer the normative question of reading Article 15 (2)( b) to include places of worship within its ambit and then apply the grounds of discrimination enumerated in Article 15 to test the validity of the notification. It is important to note that Sabarimala has been declared not constituting a religious denomination in Indian Young Lawyers Association v State of Kerala. However, a review petition is pending against the same. For the sake of clarity, I shall examine the validity of the notification by considering Sabarimala, firstly, as a non-religious denomination and, secondly, as a religious denomination. I conclude by addressing the limitations of applying the Anti-Exclusion principle to balance the rights of religious groups. 

TRACING THE ANTI-EXCLUSION PRINCIPLE IN INDIAN JURISPRUDENCE

Babasaheb Ambedkar, while discussing the religious freedom clauses in Constituent Assembly Debates (hereinafter ‘CAD’) noted that in India, religion, the private life of an individual, and the community’s public life are inextricably bound together and thus require state intervention to regulate merely secular matters. He observed in the CAD that ‘we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious’. Importantly, however, this method/basis of the distinction between religious and secular is not contained within the code. It is through judicial pronouncements that the distinction is interpreted and, in that exercise, has lost its intent by application of the ERP test, which the drafters did not intend. 

However, a rejection of the same demands another way of making sense of the freedom of religion vis a vis rights of individuals. As an alternative to the same, recently, in Indian Young Lawyers Association v the State of Kerala, J Chandrachud, in his concurring opinion, subscribes to what Bhatia has called the Anti-Exclusion Principle. The principle adds to what Sandra Fredman identifies as a multi-dimensional approach to equality and provides an additional ‘common denominator‘ that enables courts to balance irreconcilable issues. In effect, the anti-exclusion principle provides for the interests of disadvantaged groups with a history of social exclusion to be given precedence over religious autonomy claims, particularly those of dominant religious groups. The Court should leave it to the followers of any religion to determine what practices are essential and worthy of following. It is not a new perspective; it has been followed across jurisdictions committed to constitutional liberalism, like the US, Canada, and Europe, by restricting the imposition of external points of view over religious affairs to judge its essentiality. 

The application of the Principle demands a horizontal application of the non-discrimination rights contained in Article 15(2) and Article 17, primarily intended to secure the individual’s dignity and balance it with the coexisting freedom of religion. Such application can be traced back to the dissenting opinion of BP Sinha CJ in Sardar Syedna Tahir Saifuddin v State of Bombay. The case concerned the challenge to the Bombay Prevention of Excommunication Act 1949, which prohibited religious communities from excommunicating any of its members. While this Court held barring ex-communication on religious grounds cannot be considered to promote social welfare and reform, C.J. B.P. Sinha framed the issue as one of untouchability and, thus, not within the guaranteed right to religious freedom. He held that the “impugned act was aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others” (paragraph 11). He did an impact analysis of the social aspect of ex-communication to hold that ex-communication would render the person untouchable in their community. 

Anti-exclusion has not been invoked before the Sabarimala judgment, but it has been in the judicial conscience for some time now. 

APPLICATION OF ANTI-EXCLUSION PRINCIPLE TO RELIGIOUS DENOMINATION: 

Essentially, there are two aspects to applying the Anti-Exclusion principle under Article 26. Firstly, religious freedom rights are a seamless web of rights within the cover of Part III of the Constitution. Secondly, a true construction of the word morality means “constitutional morality.” 

This first view is built upon Rustom Cavasjee Cooper (Bank Nationalisation) v. Union of India that held fundamental rights contained in Part III do not exist in watertight compartments, and that all freedoms have linkages and exist in a state of mutual co-existence. In effect, where a belief infringes the fundamental values of dignity, liberty, and equality, it is liable to be struck down. Moreover, in the case of Shri Venkataramana Devaru v. State of Mysore, a Constitution Bench of this Court considered the constitutionality of the Madras Temple Entry Authorisation Act, 1947, which sought to reform the practice of religious exclusion of Dalits from a denominational temple founded by the Gowda Saraswat Brahmins. In this case, by harmonious construction, the Court balanced the tension between the individual right under Article 25(2)(b) and the denominational right under Article 26(b). It held that to preserve individual dignity and constitutional guarantees, where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the former. The Court emphasized that Article 25(2)(b) is not a mere enabling provision but a substantive right. It creates an exception for laws providing for social reform or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices. Moreover, the word public institutions in Article 25(2)(b) includes all religious institutions of public character and, thus, all denominational temples.

Furthermore, J Chandrachud, in the Sabarimala case, held that the right of religious denominations under Article 26 is not mutually exclusive of all guaranteed fundamental rights. He posed the question: “should the freedom conferred upon a group—the religious denomination under Article 26(b)—have such a broad canvas as would allow the denomination to practice exclusion that would be destructive of individual freedom?” Answering the question negatively, Justice Chandrachud observed that bestowing such exclusive rights on religious denominations would not only run against the liberal constitutional values but also be derogatory to individual dignity, which couldn’t have been the intention of the Constitution. It is in line with what Dr. Ambedkar had argued during the Constituent Assemble Debate, that the Constitution had adopted the individual as its basic unit. Thus, group rights, in a way, also are a platform for individuals within the denominations to achieve self-determination. 

Secondly, as clarified by Justice Misra in Indian Young Lawyers Association v State of Kerala, the word morality used in Article 26(b) means constitutional morality. It is rooted in the fundamental postulates of human liberty, equality, fraternity, and dignity. Thus, as a consequence, the freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination are subject to fundamental notions of constitutional morality, effectively opening the door for the application of Article 15(2) and Article 17, given the conditions enumerated within the clauses are satisfied. 

The above analysis helps answer the first two questions posed at the start of this blog. Firstly, the anti-exclusion principle could be applicable to balance individuals’ rights with that of religious groups. Secondly, an interpretation of the fundamental rights as a seamless web of rights extends the application of the anti-exclusion principle to religious denominations, even though the same is absent in the bare text of Article 26. 

APPLICATION OF ANTI-EXCLUSION PRINCIPLE:                        

Having traced the recognition of the anti-exclusion principle in Indian Jurisprudence and its extension to religious denominations, I shall now apply the anti-exclusion principle to the present case. 

In the present case, Article 17 would be inapplicable. Untouchability requires a form of social ostracising of a group. A restriction on appointment to a public office is not necessarily social exclusion amounting to Untouchability. 

Further, the notification prescribes the appointment as the chief priest to one particular category of brahmins and excludes all other brahmins and non-brahmins likewise; thus, it wouldn’t amount to Untouchability. It does not selectively exclude a category but instead restricts the appointment to a subcategory that is not caste-based. The SC in the N. Adithayan v. Travancore Devaswom Board observed thatArticle 17 was not applicable since the exclusion from the sanctum sanctorum and duties of performance of poojas extended even to Brahmins. Thus, it was not caste-based exclusion. 

This brings us to the other aspect of the anti-exclusion principle, i.e., Article 15(2). However, the Application of Article 15(2) raises questions about the lack of explicit mention of places of worship within the text of the provision. 

A CASE FOR ARTICLE 15(2)

There are two primary arguments against extending the application of Article 15(2) to Religious institutions:  

1. Firstly, it has been contended that a reading of the Constituent Assembly Debates and, specifically, the interpretation of the word ‘Public Resort’ signifies the intention on the part of the framers to exclude religious institutions.  
2. Secondly, allowing the reading of public resort to include religious institutions would mean that any person, regardless of their religious inclination or belief, ought to enjoy equal access to any place of worship without a bar on religion. 

J Indu Malhotra, in her dissenting opinion in Indian Young Lawyers Assn. v. State of Kerala, opined that all the proposals for inclusion of the places of worship within the ambit of draft Article 9 of the Constitution were rejected. In the course of this part, I shall deal with the amendments proposed in the Constituent Assembly debates and reach a different conclusion. A fair reading of Constituent Assembly Debates suggests that “public resort” does include places of worship, and where the State fully or partially funds it, the same would be subject to the application of Article 15(2). 

Let us consider all three amendments: 

Prof. K.T. Shah proposed the first amendment for the substitution of sub-clauses (a) and (b) as follows: “any place of public use or resort, maintained wholly or partly out of the revenues of the State, or in any way aided, recognised, encouraged or protected by the State, or place dedicated to the use of general public like schools, colleges, libraries, temples, hospitals, hotels and restaurants, places of public entertainment, recreation or amusement, like theatres and cinema-houses or concert-halls; public parks, gardens or museums, roads, wells, tanks or canals; bridges, posts and telegraphs, railways, tramways and bus services; and the like.” 

Significantly, the modified clause uses the word ‘like,’ and to that extent, it gives an indicative list of places included within the term public resort. Prof Shah, while proposing the amendment, mentioned, “I am not merely trying to give a list of places of public use or resort, or those dedicated to public service, from which in the past discrimination has been made and individuals of particular communities or classes have been excluded for no other reason except their Caste or birth. Clearly, this is the intention of the article, and I am only seeking to expand and express it more clearly than has been done in the wording of the article as it stands.”

Thus, while discussing places of public resort and what to include in them, he was proposing a list and not referring specifically to places of worship. 

Furthermore, the intention to include places governed by religious institutions is also evident when at one point, S Nagappa asked whether places of the public resort included places like burial or cremation grounds which are generally maintained by religious bodies. Dr. Ambedkar answered that if there is a burial ground maintained out of State funds, then obviously, every person would have every right to have their body buried or cremated therein. 

The discussion on the meaning of public resort was further clarified when R.K. Sidhva asked Dr. Ambedkar about the interpretation of the word ‘public’. Dr. Ambedkar refused to accept the narrow definition of ‘Public’ used in the Indian Penal code. He clarified that in this clause, the word public is used in a special sense to mean ‘a place is a place of public resort provided it is maintained wholly or partly out of State funds’.

Thus, it can be said that KT Shah’s amendment was merely indicative of places that would come within places of public resort. Reliance on one facet of the amendment, i.e., there was an indication of places of worship, and the same was not incorporated in the final draft, as signifying the intention to not include places of worship under Article 15(2) is not accurate. Because in this manner, the amendment even had the word educational institutions, which is not prima facie included in the text of Article 15(2) but has been interpreted in the case of Indian Medical Association V UOI within the meaning of the word ‘shops’. The intention of the constitution makers is seen from the drafting committee and the basis of rejection. In this case, the basis of the amendment’s rejection was not the intention to not include places of worship but to leave it wide open to include places that the State partially and fully funds. 

The second and third amendments were proposed to modify 15(2)(a) to include the words ‘places of worship’ after the word ‘public entertainment’ at the end of sub-clause (a) of Article 15(2). The rejection of both of these amendments by the drafters was logical. It helped clarify that places of public worship were already included in public resorts in a restricted sense with the condition of it being partially or fully funded by the State under Article 15(2)(b). Thus there was no need to incorporate the word in Article 15(2)(a). It is also true, given that the condition of being fully or partially funded is only a qualification for Article 15(2)(b) and not of Article 15(2)(a). 

This interpretation helps answer the second part of the contention raised against the application of Article 15(2)(b) to include places of worship because it might hamper the autonomy of religious institutions, and they would not have any say. This, however, is not true. Article 15(2) is qualified by the phrase ‘wholly or partly out of State funds or dedicated to the use of the general public’. Thus, it acts as a condition precedent for subjecting a temple to Article 15(2)(b ), which as a consequence, balances the religious autonomy by restricting the application of Article 15(2) only to places of worship that are public places. 

The above reading of the CAD clarifies the intent of the Constituent makers and helps answer the third question, i.e., the governing laws of the anti-exclusion principle cover religious institutions within their ambit. 

APPLICATION OF ARTICLE 15 TO PRESENT PETITION

In the present case, the notification prescribes the appointment of Malayala brahmin as the Melshanti of the Sabarimala Temple. A Malayala Brahmin is a subcategory of Brahmin belonging to the State of Kerala. Thus, the question for consideration is whether the Travancore Board’s notification restricting the appointment of Melshanti on the grounds of Caste and Place of birth violates Article 15(2), i.e., whether simultaneous discrimination based on two prohibited categories is within the fold of Article 15?

Article 15(2)(b) provides that “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”. 

Shreya Atrey suggests a complete reading of the clause, including the phrase “or any of them”, which clarifies an indication of covering multi-ground discrimination within its ambit. Similarly, Kannabiran supports the assertion that Article 15(1) could be interpreted to mean that discrimination is prohibited on a single ground or a combination of grounds, whether listed or not, and places the responsibility of examining discrimination on the Court. Furthermore, A reference to Constituent Assembly debates suggests that there has neither been an indication in the CAD to exclude multi-ground discrimination nor an indication to restrict the number of grounds in a claim or consider it a closed list. 

While the above observation is regarding Article 15(1), it could be imported to Article 15(2) in the absence of intentions to the contrary in CAD. Thus, in the present case, restricting the appointment of the Melshanti to Malayala Brahmin infringes upon the personal autonomy of other eligible brahmins and non-brahmins based on their immutable status of Caste and place of birth.

This brings us to the second prong of the analysis, i.e., when can such categorisation and discrimination be justified? Article 15 allows discrimination for affirmative action. Any categorisation should satisfy the reasonableness standard. For that, there should be an intelligible differentia and a rational nexus to achieve the objective. In the present case, the criteria is that person should be a Malayala Brahmin. However, it is not clear who would form Malayala brahmin. There exist multiple categories and subcategories within the Malayala Brahmin, and a lack of prescribed criteria in the absence of a census to determine a person as a Malayala brahmin. Secondly, the reason behind affirmative action flows from article 14 to maintain equality of opportunity for equals. Malayala brahmins are the upper priests in the State of Kerala, and there is no need to provide for their upliftment. 

Further, the aim, if any, is the proper performance of the rituals of the Temple. It requires that only a qualified person well-versed and adequately trained for the purpose should perform pooja at the Temple. Notably, the Travancore Devaswom Board had opened a Thanthra Vedantha School at Tiruvalla for training Santhikarans, irrespective of their caste/community. Thus, there cannot be any justification later on, to restrict appointments to one particular Subcategory of Brahmin. 

WHAT IF SABARIMALA WERE ASSUMED TO BE A RELIGIOUS DENOMINATION 

In the preceding section, I have examined the validity of notification in line with the current judgment of the Court in the Indian Young Lawyers Association v State of Kerala. Here, I will try to analyse the impact, if any, of declaring Sabarimala as a religious denomination on the application of Article 15(2)(b). 

In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the expression “religious denomination” was held to require three conditions:

(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;

(2) common organisation, and

(3) designation by a distinctive name.

Significantly, funding from the State is not a necessary condition for a religious denomination. However, for a place of worship to be subject to Article 15(2)(b), funding from the State acts as a condition precedent. Thus, a fair reading of the conditions prescribed for Article 15(2)(b) and Article 26 suggests that all places of worship, whether governed by a religious denomination under Article 26 or not, are subject to Article 15(2)(b) if the State wholly or partially funds them.  This helps answer the final question about the limitation on application of anti-exclusion principle to balance the fundamental right to religion of individuals to that of religious denominations. In cases where a private religious denomination not funded by the state restricts appointment to priestly position to a particular group, citing their religious practice/custom, and such practice/custom does not run foul on the threshold prescribed for untouchability under Article 17, it would not be made subject to general and broader grounds of prohibition mentioned under Article 15(2). 

In the present case, it is clear that the Travancore Devaswom board receives funding from the consolidated fund of Kerala according to Article 290 A and is administered through a statutory body constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950. Thus, the only condition precedent to the application of Article 15(2)(b) is satisfied even in cases where the Court was to declare Sabarimala a religious denomination. 

Guest Post: Social Media, Public Forums and the Freedom of Speech – II

[This is a guest post by Praharsh Johorey.]

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About eighteen months ago, I had written an essay on this blog asserting a constitutional right to free speech on social media, with a focus on Twitter. In that essay, I had contended that the freedom of speech under Article 19(1)(a) could be asserted against social media companies, and premised this on two distinct grounds:

• Twitter is imbued with the constitutional character of the State because by giving the public a platform for speech it performs what is a ‘public function’, and therefore, is constitutionally liable for overbroad censorship; but that in any event:
• Article 19(1) and (2) of the Indian Constitution do not textually require that freedom of speech can be claimed by citizens exclusively against the State, who can also assert such freedoms against private parties (like Twitter) who unconstitutionally limit such speech.

Therefore, I concluded that:

“Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.”

Much has transpired in the last eighteen months – Mr. Sanjay Hegde (a Senior Advocate in the Supreme Court of India) has filed a Writ Petition against Twitter before the Delhi High Court against the ‘illegal suspension’ of his Twitter account. More examples of Twitter’s growing censorial prowess have raised concerns about the impartiality of the Twitter platform in India, with people on both ends of the political spectrum claiming overbroad censorship on the platform – either in the form of the reduction of one’s Twitter followers (which limits one’s outreach online), or the disappearance of a user’s ‘likes’ and ‘retweets’ (which is an overt censorship of one’s ‘speech’ online).

Twitter’s conduct therefore continues to raise serious questions about what, if any, constitutional and/or legal recourse is available to someone aggrieved with their (in)ability to (I) access the Twitter platform (such as Mr. Hegde); and (II) communicate freely while on the platform (such as Mr. Kashyap). Because these questions are now pending determination before a Constitutional Court in India, it is as good a time as any to re-examine the constitutional questions involved, which can be framed as follows:

• Is Twitter, a private company, amenable to constitutional scrutiny?
• Is access to a public platform a facet of my freedom of speech?
• Once on a platform – can constitutional rights to free speech override private rules and regulations that govern speech on this platform?

Answering (i) will require a re-examination of my previously stated position (as reproduced above), and strikes at the heart of the maintainability of Mr. Hegde’s petition before the Delhi High Court. Accordingly, it is appropriate to address the question of maintainability in this essay – leaving open questions on the merit of Mr. Hegde’s petition to later posts.

It is not Mr. Hegde’s case that Article 19 is capable of being directly asserted against private individuals like Twitter. This is because the Supreme Court in P.D. Shamdasani v. Central Bank of India Ltd. declared that the rights under Article 19 cannot be asserted against private parties because ‘the language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest.’ Therefore, to establish maintainability of a writ petition against a non-state party, Mr. Hegde has had to contend that Twitter is something analogous to the State. His legal basis for this (as stated in his petition here) is two-fold:

“… a Petition under Article 226 is maintainable against a private party which discharges a Public Function … by providing a means for dissemination of and access to information, social media agencies discharge a public function.”

Speaking generally, there is little doubt about proposition (b). It is unlikely to be Twitter’s case before the Delhi High Court that the services it provides do not correspond to a colloquial understanding of a ‘public function’, i.e. a function for the general public serving the public good – in this case being providing a means for the ‘dissemination of and access to information’. But this standard for imparting constitutional character, and consequently establishing maintainability, seems at first glance loose at best, and dangerously vague at worst. One could think of hundreds of Indian organisations (either supplementing or even entirely replacing the State in their respective fields) providing ostensibly ‘public’ functions: Airtel, in providing millions of Indians with the ability to telecommunicate and access the internet; Indigo Airlines, in providing access to affordable commercial flight; or even Ola Cabs, in filling significant gaps in the daily commute of millions across India. Would Mr. Hegde’s arguments equally apply to someone claiming a constitutional right to remain on Airtel’s network, despite breaching their terms of service?

In this view, it becomes necessary to examine proposition (a), i.e. the contours within which Indian constitutional courts have applied the ‘public function’ test, and assess Twitter’s amenability to this test.

Early last year, the Supreme Court in Ramakrishna Mission and Anr. v. Kago Kunya and Ors. was seized of an appeal from a judgement of the Gauhati High Court, which had declared that the ‘Ramakrishna Mission Hospital’ (a hospital in Itanagar) while not the ‘State’ within the meaning of Article 12, performed a ‘public duty’ and was consequently amenable to writ jurisdiction under Article 226.

The NGO which operated the hospital strongly resisted the broad interpretation sought to be given to the term ‘public function’, while the State of Arunachal Pradesh – which supported the judgment of the Gauhati High Court – submitted that it was only because of the unique status of the hospital as (i) a monopoly in Itanagar; (ii) a beneficiary of grants/subsidies from the State Government; (iii) a provider of the public function of healthcare, that rendered it subject to Article 226. Therefore, it was neither party’s case before the Supreme Court that any organisation providing a ‘public’ function could be subject to Article 226. The specific attributes of the hospital itself, as a beneficiary of State largesse, were therefore a crucial factor in this determination.

Here, the Court, in ascertaining the scope of the term ‘public function’ substantially relied upon G Bassi Reddy v. International Crops Research Institute, which held:

“28. A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty…ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.” (emphasis supplied)

Relying upon this precedent, the Court found as follows:

“Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.” (emphasis supplied)

Therefore, in establishing that an organisation is discharging a ‘public function’, the following factors establish the threshold that needs be proven:

• whether the function/service provided is closely related to that which is provided by the State in its sovereign capacity;
• whether the nature and extent of governmental control over the management or day to day functioning of the organisation is sufficient to render it a State authority;

It is therefore apposite to discuss only (i) in the context of Twitter, as proposition (ii) is ex facie inapplicable to private social media companies.

Mr. Hegde does not argue (i) directly – instead, he contends that “Twitter serves as a medium for citizens…to communicate their grievances and concerns with elected officials and government representatives. It serves as a source of news and information – as the “marketplace of ideas”…it therefore performs a public function and is amenable to the jurisdiction of this Court under Article 226.” This, I contend, does not meet the threshold under (i). Admittedly, Twitter is used by the Government, Government Officials and politicians of all stripes to make policy pronouncements, disburse information about government programs, campaign for elections and even engage directly with citizenry. However, this is distinct from the principle required to be proven in (i) – which is whether the primary service provided by Twitter, i.e. providing a platform for digital micro-blogging, is closely related to a sovereign function of the Indian Government.

In Balmer Laurie & Co. Ltd. v. Partha Sarathi Sen Roy, the Supreme Court differentiated between ‘governmental functions’ and ‘sovereign functions’ of the Government as follows:

“Every governmental function need not be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the State’s essential functions, which contribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, corporates and companies. Thus, considering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon, etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would not render an enterprise sovereign in nature.” (emphasis supplied)

The threshold for an organisation’s services to be analogised to a ‘sovereign’ ‘inalienable’ function is high. Twitter is certainly a social good, a modern ‘public square’, where people communicate, disseminate ideas and share information.

However, it is difficult to reasonably contend that the provision of a social media platform by a private organisation is ‘closely related’ to examples of these sovereign ‘primarily inalienable’ functions (as elucidated by the Court), i.e. legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security or grant of pardon. Allowing people another medium or forum in which to communicate and/or disseminate information is not tantamount to performing a function that is, or has ever been considered to be, a function that is exclusively within the domain or competence of the Government. It has always been free for citizenry to collect and participate in private platforms that permit communication and/or the spread of information (digital or otherwise) – whether in the form of social clubs, radio shows, telecommunication, instant text message groups or now, on social media. The Government, while certainly an enabler (in that it does not prohibit such forums from proliferating in the private sphere) and even an active participant in such platforms, is not obligated to provide and/or maintain these platforms for its citizens in the discharge of its sovereign functions, as enumerated above. Consequently, the conclusion that social media companies are not discharging a ‘sovereign’ ‘inalienable’ public function is inescapable.

It might be asked: how then did the Board for Cricket Control in India (BCCI) – which regulates the sport of cricket in India – find itself subjected to the jurisdiction of Article 226 in the Supreme Court’s decision in BCCI v. Cricket Association of Bihar and Ors. by application of the same ‘public function’ test? Surely it is not the government’s prerogative (and certainly not its sovereign function) to administer sports for its citizens either?

The Supreme Court in BCCI does not grapple with this standard. Instead, the Court lays emphasis on the nature of control exercised by the BCCI over the administration of cricket in India, assuming – without alluding to the standard discharging a ‘sovereign’ ‘inalienable’ function – that the administration of cricket is ex facie a ‘public function’. The only reasoning the Court gives for allowing the administration of cricket to be given such importance (in and of itself) is that it is a sport in which participants are ‘applauded by the entire nation, including at times by the highest dignitaries’.

What BCCI does is to reduce the standard of a ‘public function’ from being one of discharge of a ‘sovereign’ ‘inalienable’ function to a function that is seemingly of significant importance to the public. Arguably, social media, as a category of organisations, and all private sports regulators, would fit within this looser standard.

However, the reasoning in BCCI that simultaneously heightens this diluted threshold is the Court’s emphasis on BCCI’s monopoly over this function, noting – at the outset – that “the respondent-Board has complete sway over the game of cricket in this country.” The Court elaborates:

“All these activities (i.e. of the BCCI) are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket…The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act.”

The Court lays significant emphasis on the BCCI’s exclusive right to control and regulate the game – to the exclusion of all others – with the overt support of the Government of India. This, the Court makes clear, is the fundamental reason why the BCCI is amenable to writ jurisdiction:

“The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action…BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.” (emphasis supplied)

Therefore, it is insufficient to rely on BCCI to contend that discharging a function that is of importance to the public would be tantamount to discharging a ‘public function’. After BCCI, it falls on those seeking to impart constitutional character to private individuals/organisations to prove that such organisations not only discharge a function of significant public importance, but also discharge this function exclusively, with the government’s tacit (non-interference with its functioning) or overt (conferment of state subsidies, grants, permissions etc.) support.

As alluded to earlier in this essay, it can be no-one’s case that Twitter, and other social media companies, do not provide a service that is of importance to the public. Social media companies have hundreds of millions of active users per day, and have given rise to important social movements and allow seamless conversation with like-minded individuals across borders. However, does Twitter discharge this function exclusively?

The answer, quite simply, is that it does not. The core service, that of providing a digital platform for communication online, is not the exclusive reserve of Twitter. While Twitter does have features that set it apart from other similar social media companies (particularly on the ease with which one can ‘follow’ topics/people of interest), its primary ‘function’ of providing and maintaining a digital platform is also undertaken by various other private organisations, not least Facebook – which after the acquisition of Whatsapp and Instagram operates atleast three known platforms of similar fundamental utility. Mr. Hegde’s concedes this:

“Social media agencies enable individuals to participate in a free flow of information and ideas with others across the world. Twitter users can create communities to share information, ideas, personal messages etc. Unlike any other medium of communication (such as radio, television and printed publications), which are based on one-way transmission of information, platforms such as Twitter, facilitate participatory information sharing and collaboration. Users are not passive recipients, but active publishers of information.” (emphasis supplied)

 

By accepting that Twitter is only one of several social media companies that ‘enables individuals to participate in a free flow of information’, it is clear Twitter is not alone in discharging its primary functions of operating a social media platform. While social media companies as a class operate to the exclusion of the government in this space (in that the Government does not provide/operate a social media platform itself), none of the companies individually claim a monopoly of this field in India. In fact, most users of these platforms use and participate in several platforms simultaneously, with your author having been an active user of Facebook, Instagram and Twitter at a given point in time. Therefore, it is clear that one’s inability to access Twitter (having fallen foul of its rules and regulations, for e.g.) does not hinder one’s ability to access either the internet or social media platforms generally, with seamless migration between different platforms being a key facet of the modern internet age. On this ground also, Twitter’s lack of monopoly renders it well short of the standards laid out in BCCI.

Conclusion

At the end, I find myself in the somewhat unfortunate position of having used 3000 words to argue against myself. My contention in my earlier essay, i.e. that Twitter performs a ‘public function’ rendering it susceptible to writ jurisdiction, is incorrect, as Twitter neither performs an ‘inalienable’ ‘sovereign’ function, nor does it exclusively perform a function of public importance as a monopoly in its field.

Regardless, Mr. Hegde’s arguments on the maintainability of his petition are likely to cause waves in constitutional law circles irrespective of the outcome. It is well worth following.

Round-Up: The Delhi High Court’s Experiments with the Constitution

(This is the second part of three blog posts that round-up some recent judicial pronouncements. For work-related reasons, I did not have the time to write about them when they were delivered. – Ed.)

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Benches of the Delhi High Court have issued a series of interesting rulings in the first half of 2018. A summary follows.

Article 14 and Genetic Discrimination

In United India Insurance Company v Jai Parkash Tayal, a single-judge bench of the Delhi High Court invalidated a clause of an insurance contract that excluded “genetic disorders” from the scope of insurance. The judgment proceeded on multiple grounds, and makes for fascinating reading. In particular, Justice Pratibha Singh invalidated the clause on the grounds of Article 14 (equality before law), 21 (right to health), and the impermissibility of changing an insurance contract to the detriment of the insured. The Article 21 issue is not one I will discuss here: as readers of this blog will know, the reading in of broad socio-economic rights into Article 21, and their exceedingly uneven application on a case-to-case basis, is not something I am very comfortable with. This case, like so many others, tells us that there is a right to health, and then uses it to achieve a specific outcome, but somewhere along the way, the precise spelling out of the scope, contours and limits of this right, and the nature of the obligations it places upon the State, is lost by the wayside.

What I find much more interesting, however, is the manner in which the Court used Article 14. In paragraph D1, Justice Singh observed:

Article 14 of the Constitution of India prohibits discrimination of any kind. This would include discrimination based on genetic heritage of an individual.

There is, however, something odd about this framing. Article 14 is the equality clause. The non-discrimination clause is Article 15(1), which prohibits the State from discriminating on grounds of race, religion, caste, sex, and place of origin. Moreover, Article 15(1) is a closed list – unlike certain other Constitutions, no additional, analogous grounds can be brought within its ambit. Article 14, on the other hand, is a general equality clause that has been interpreted by the Courts to exclude irrational classification or arbitrary State action, on a case-to-case basis. Unlike Article 15(1), Article 14 does not – a priori – rule out specific grounds upon which differentiation may be based. The distinction between Articles 14 and 15(1) was expressed by Patanjali Sastri CJ in a classic exposition, in Kathi Raning Rawat v The State of Saurashtra (1952)

As we can see, Justice Singh’s observation that Article 14 prohibits discrimination on the basis of genetic heritage appears to conflate Sastri CJI’s distinction between Articles 14 and 15(1).

In the latter part of the judgment, however, Justice Singh modulates the claim. In the context of insurance contracts, she concedes that there may be a class of narrowly defined cases (to be articulated by the policy-makers) where certain kinds of genetic diseases can be excluded by the insurer. Her specific problem is with the width of this exclusion clause (covering all “genetic disorders”) which – as she states in the operative part of the judgment – violates Article 14. Consequently, Justice Singh’s argument is not that “discrimination” on the basis of genetic characteristics will automatically violate Article 14, but rather, it will presumptively violate Article 14, unless strong reasons can be shown that justify the violation. In other words, differentiation based on genetic differences will be subjected to stricter judicial scrutiny than other classifications.

Is there any constitutional warrant for this reading of Articles 14 and 15? I have recently argued that there is, in a defence of the Delhi High Court’s Naz Foundation judgment (SSRN version here). Briefly, the argument is as follows: an analysis of the Constituent Assembly Debates shows that the framers did not intent Articles 14 and 15 to operate as separate silos. Rather, Article 14 was the general expression of the concrete commitment towards non-discrimination under Article 15(1). The framers took the five most publicly salient grounds at the time – race, religion, caste, sex, place of origin – and prohibited all discrimination involving those grounds. However, the framers also realised that forms and sites of discrimination evolve, and what is not salient today can become salient tomorrow (classic examples: sexual orientation, disability, and age, which are all present in some more recent Constitutional documents). For this reason, the framers included Article 14, whose more open-ended language would allow future Courts to develop new grounds of discrimination, and subject them to stricter scrutiny (something akin to a proportionality standard). Unfortunately, however, this possibility has never seriously been explored by the Courts, who have been caught between the classification and the arbitrariness standards under Article 14. Naz Foundation represented the first serious articulation of this vision of Articles 14 and 15(1). United India Insurance Company is another small, incremental step towards it.

Uncertainties over Horizontality

The Delhi High Court was very clear that Articles 14 and 21 applied to all insurance contracts, whether entered into by a State insurer or a private insurance company. This, however, is a problematic conclusion. Articles 14 and 21 very categorically apply to State action. “State”, under Article 12, is limited to government and entities under the “functional, financial, and administrative” control of government. Without some additional reasoning, a private insurance company cannot be brought within the ambit of the fundamental rights chapter.

The Court’s response was to argue that insurance contracts are unequal (like contracts of adhesion, although the Court did not use the term), and place the insurance applicant at a disadvantage. That is correct – and many jurisdictions recognise that such contracts are of a special kind, that cannot be interpreted in a normal way (see the recent decision of the UK Employment Tribunal involving Uber’s contracts with its drivers). However, the remedies for that are provided within contract law: interpret ambiguous terms in favour of the weaker party, and if the unconscionability is clear, void the contract on grounds of public policy. The Court could even have said – as it came close to doing – that such contracts had a public element, and therefore could be subjected to public law norms (which include norms of non-discrimination). There is no warrant, however, for making Part III of the Constitution directly applicable to private insurance contracts, and to the extent the Court did so, I submit that it erred.

The same issue arose in another Delhi High Court decision that made the news recently, Sanghamitra Acharya v State (NCT) of Delhi. Sanghamitra Acharya involved the commitment of an adult woman into a mental hospital at the instance of her parents. Justice Muralidhar, writing for the division bench, held that the woman’s rights to liberty, autonomy and dignity had been violated (especially in view of the Puttaswamy judgment), that the parents, police, and the hospital were in breach of their legal obligations, and ordered compensation. This is, of course, impeccable; in the course of the judgment, however, the Court expressly held that Articles 19 and 21 (along with Articles 15(2), 17, and 23) were horizontally applicable between private parties.

It is true that Articles 19 and 21 are not categorically framed as injunctions against the State. Article 19 stipulates that “All citizens shall have the right… to freedom of speech and expression…” and Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Therefore, there is no express textual bar against reading Articles 19 and 21 horizontally. However, the reference to State restrictions under Articles 19(2) to 19(6), and the specific reference to “procedure established by law” under Article 21, strongly indicates that these Articles are meant to apply vertically, between State and individual. This is buttressed by the fact that where the framers did intend the horizontal application of fundamental rights, they were clear and unambiguous about it (Articles 15(2), 17, 23, 24). And lastly, this is how the Courts have almost uniformly understood and interpreted them (there are some exceptions, such as the Aruna Shanbaug judgment). It is, of course, open to the Delhi High Court to hold that this jurisprudence is misguided; however, such a radical change in the interpretation of Articles 19 and 21, it needed to provide strong reasons for that holding, and also to elaborate its own theory justifying the horizontal reading of Articles 19 and 21. With respect, the Court did not do that.

Legal Interpretation in the Shadow of the Constitution

What the Court did do very well, in my opinion, was bring the Constitution to bear upon the interpretation of the Mental Health Act, which was the relevant legislation at issue. The Court was examining whether the “involuntary admission” into a mental hospital was consistent with the scheme of the Act. Under Section 19, a person could be involuntarily admitted into a mental hospital by their relative or friend, if the medical officer in-charge was “satisfied” that it was in the interests of the patient. The Court held that although Section 19 was a “stand-alone” provision, the rights under Article 21 required that the word “satisfaction” be read as “objective satisfaction”; that is, the medical officer would have to follow the legal definition of “unsoundness of mind” (which is narrow and circumscribed) before allowing involuntary admission. On facts, it was found that the medical professional had not even attempted to apply any objective standards in his determination.

The form of interpretation that the Court engaged in here is one that Indian Courts have attempted in the past, but only sporadically: borrowed from German law, it is called “the radiating effect” put broadly, holds that a Constitution is not merely a set of rights, but an objective “order of values”, and these values “radiate” through the legal system. In concrete terms, a Court is to interpret laws – including private law – in a manner that advances and promotes the constitutional order of values. By interpreting “satisfaction” (an ambiguous word) to refer to “objective satisfaction”, and to justify that reading by specifically pegging it to constitutional rights, the Sanghamitra Acharya is an important judgment in the context of the theory of the radiating effect.

Traces of this are visible in two other judgments the Delhi High Court delivered, on the subject of labour law. In Indu Munshi v Union of India, a division bench of the Delhi High Court ordered the regularisation of a batch of Kashmiri Pandit schoolteachers. The schoolteachers had been forced to flee from the Valley in 1993, and had come to Delhi. They had been given contractual jobs as schoolteachers in 1994 – and then kept on contract for the next twenty-four years. The issue of regularisation is a fraught one, and any Court that wishes to order regularisation has to content with the challenge of the Supreme Court’s Constitution Bench judgment in Uma Devi’s Case, which invoked the constitutional right to equality of opportunity to hold that contractual employees who had been appointed by the “back door” could not later be regularised “at the cost of” other employees. Uma Devi’s ratio has, however, been subsequently whittled down (the High Court discussed some of these judgments), and here Justice Bhat, writing on behalf of a Division Bench, held that, on facts, there was no “back door appointment.” One of the crucial features that weighed with Justice Bhat was the fact that the Kashmiri Pandits had arrived as refugees, and were compelled to accept whatever offer of employment was open to them, without any genuine choice or bargaining power. When combined with the fact that the process of appointments was competitive, and that the teachers had worked against regular (unfilled) vacancies for twenty-two years, as well as a number of other technical factors, Justice Bhat held that, notwithstanding Uma Devi, the case for regularisation was unanswerable. The Court also held that the contractual teachers deserved remuneration that was equal to the sanctioned remuneration for regular schoolteachers. It adopted a broad version of the “equal pay for equal work” doctrine (which focused on the nature of work) rather than a narrow version (which made technical factors such as cadres and sources of appointment – which could easily be undermined – determinative), and again, framed the issue as a right against exploitation:

Turning to the issue of equal salary and remuneration, the Govt of NCT of Delhi had argued that the teachers could not question their emoluments, because they had accepted their contractual status and functioned in that capacity for over a decade and a half. The teachers’ argument is that they had practically no choice; the alternative to accepting the job with reduced emoluments was starvation or no employment. Such a Hobson’s choice is not meaningful. This court agrees with the contention and holds that there cannot be any estoppel in such situations, barring claims to parity. Long ago, in Sanjit Roy v State of Rajasthan, AIR 1983 SC 328, the Supreme Court characterized as forced labour the acceptance, under compulsion of circumstances, by a person without employment, remuneration that was lower than the minimum wage and stated “that it may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under the law to receive.”

And:

In the facts of the present cases too, the court is of the opinion that the mere nomenclature of “contract teachers” is an artificial one given to the teachers who approached this court through the writ petitions that have led to these appeals; they were appointed against regular vacancies, their services are unbroken and have not been continued on account of any stay or court directed interim order; their appointments were pursuant to a constitutionally recognized and acceptable procedure of advertisement and calling names from employment exchange; they each held and hold the requisite qualifications, including B.Ed; all of them were interviewed before their appointment. For these reasons, having regard to their unbroken employment for over two decades, in line with the decision in Umadevi (supra) as understood in Pratap Kishore Panda (supra), Malati Dass (supra) and Sheo Narain Nagar (supra), the said Kashmiri migrant teachers are entitled to be treated as regular appointees. They shall also be entitled to provident fund benefit, gratuity and pension upon attaining the age of superannuation. If any of the petitioners or any other Kashmiri migrant teacher has already attained superannuation or has died in the interregnum the Govt of NCT of Delhi shall calculate their entitlement and release them to such retired employees, and in the case of death, release such amounts to the legal representatives of such deceased employees.

Of course, the Constitution was not directly involved in this case, in the sense that there was no legal provision under challenge. However, it is obvious that the Constitution – and especially, its egalitarian and anti-exploitative ethos – permeated each of the choices the judges had to make. Uma Devi had invoked the doctrine of equality of opportunity to set up “regular” and “back door” appointees in conflict with each other, competing for the same scarce public good (jobs). The Delhi High Court rejected this race-to-the-bottom vision of equality and, instead, focused upon an understanding of equality that was sensitive to exploitation and disparities in bargaining power, to hold that Uma Devi was inapplicable to the present case, and furthermore, the the constitutional principle of equal pay for equal work would also apply.

The Constitution was more directly at play in M/s Metrro Waste Handling v Delhi Jal Board, a brief judgment concerning manual scavenging, and bookending its holding by quotes from Dr. B.R. Ambedkar. The Delhi Jal Board issued a tender for mechanised sewer cleaning, where it did two things: first, it stipulated that only one machine would be issued per bidder; and second, it stipulated that preference would be given to the families of deceased manual scavengers and ex-manual scavengers. The first condition – it argued – was to encourage small entrepreneurs and the underprivileged class to apply. The justification for the second is obvious. The Petitioner challenged the first condition as being arbitrary, and the second as imposing a “100 percent reservation”, which was unconstitutional.

The Court rejected both arguments. On the first, it found that the DJB had set up an elaborate system of loans and other forms of aid to genuinely enable underprivileged sections to effectively bid for the tender; the argument from arbitrariness, therefore, was dismissed. From a constitutional point of view, however, the second issue is more interesting. The Court rejected the argument that the DJB’s order of preference was establishing 100 percent reservation. This was not – it observed – a system of “quotas”:

What is in issue, however, in this case is the attempt of the state, uniquely to ensure that the livelihood and lives of sewage workers performing manual scavenging tasks are meaningfully uplifted. The system of preference is not reservation, in any sense of the term. The court recollects what was held in Government of Andhra Pradesh v Vijaykumar1995 (4) SCC 520 that the wording of Art. 15(3) enables “special provisions” is wider than Article 16(4) which enables a special provision by way of reservations. Article 15(3) is wider and includes “positive action programmes in addition to reservations”.

However, if what was involved was not reservation, then the provisions of Articles 16(4) (since it specifically mentions reservation). Nor could 15(3)’s “special provisions” be invoked, since they are limited to women and children. The only alternative, therefore – as the Court noted – was that preferential treatment of underprivileged classes was itself consistent with the guarantee of equality of opportunity under Article 16(1). Or, in other words – as the concurring opinions of Justices Mathew and Krishna Iyer had famously held in NM Thomas, but which were not subsequently developed in detail – the constitutional vision of equality is a substantive vision, which factors in structural and systemic discrimination, and views the overcoming of structural barriers as part of the very meaning of equality. As Justice Bhat – again, writing for a division bench – held:

Seen from the context of the decisions quoted previously, the NIT conditions are not meant to exclude the “general” class of citizens. They afford an opportunity to an utterly marginalized section a “step up” (or to use the expression in Nagaraj (supra), “catch up”) with the other citizens. The object of such preference is plainly to enable the meaningful participation of the most marginalized section, i.e. workers involved in manual scavenging, and scheduled caste/scheduled tribe communities (who are so chosen, having regard to what the Constitution framers stated as “a backward section of the Hindu community who were handicapped by the practice of untouchability”). The state, i.e., DJB, in our opinion, had a compelling interest in promoting the welfare of these class of citizens, while conceiving and implementing this system of preferences, in the impugned NIT.

Indirect Discrimination

This provides an ideal segue into the last case: Madhu v Northern Railway. Madhu involved the interpretation of certain Indian Railways rules. The dispute centred around a railway employee taking his wife and daughter “off” his list of “dependents” entitled to free medical treatment, on the ground that he had “disowned” them. The Railways argued that for a person’s dependents to avail of treatment, he had to make a “declaration” that they were part of his family; in this case, since the employee had refused to do so, the Railways was justified in denying them medical treatment. The Division Bench, speaking through Justice Bhat – yet again! – rejected this argument, arguing that not only was such an interpretation textually untenable, but also that accepting it would perpetuate indirect discrimination:

The Northern Railways contends that the Appellants are not denied the medical card because they are women, but rather because their husband and father had not made the requisite declaration. However, this explanation is not enough. It is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the Appellants because they were women. Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.

The reason that the drafters of the Constitution included Article 15 and 16 was because women (inter alia) have been subjected to historic discrimination that makes a classification which disproportionately affects them as a class constitutionally untenable. The Northern Railways decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/servant, the dependents are subject to the whims and fancies of such employee. The large majority of dependents are likely to be women and children, and by insisting that the railway officer/servant makes a declaration, the Railway authorities place these women and children at risk of being denied medical services.

It is irrelevant that the Railways did not deny them the medical card because the Appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways. The ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents.

The concept of indirect discrimination – discussed in some detail on this blog previously – has been incorporated into the jurisprudence of many other constitutional courts (the High Court cited some of them). Indian Courts have taken tentative steps towards it, but Madhu represents perhaps the first full-blooded articulation and defence of indirect discrimination as a form of discrimination prohibited by the Constitution. It will, hopefully, be the first of many instances.
 

The New Maharashtra Social Boycott Law: Key Constitutional Issues

The final version of the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016 contains a few key departures from the draft bill (available here) The most important is the scope of the word “victim” under the definitional clause (S. 2(h)). The Draft Bill defines a “victim” as “any individual who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of social boycott.” The Act limits the definition to “any individual who has suffered or experienced physical or monetary harm or harm to his property as a result of the commission of social boycott.” The removal of the words “mental, psychological, emotional” has the potential to severely restrict the scope of the Act. The primary harm of a boycott is dignitarian in nature – it harms by stigamatising and excluding the boycotted person, and blocking off his access to community resources. In many cases, it will be difficult to show actual “physical” or “monetary” harm, if one was to take these terms literally.

In my view, however, there is enough reason for the Courts to interpret “physical harm” broadly, so as to include dignitarian harms. This is because many of the instances of social boycott that are expressly set out under S. 3 of the Act have nothing to do with physical or monetary harms. Section 3(i), for instance, deals with obstructing an individual from practicing any social observance or custom; 3(iii) deals with social ostracism; 3(iv) talks about shunning a community member “resulting in making the life of such member miserable.”; 3(viiii), inter alia, deals with severance of social relations; 3(xi) deals with preventing the children of the community from playing together with children of specific other families; 3(xv) deals with community expulsion. It therefore seems clear to me that if “physical harm” under S. 2(h) was to be restricted to bodily harm, large sections of the Act would become redundant. Such an interpretation is to be avoided. Consequently, a broader interpretation of the term “physical harm” is to be preferred, one that includes within its scope the kind of harm that all these sub-sections are aiming at curtailing – which is, essentially, harm to dignity.

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With that out of the way, let us now examine some key constitutional issues with the Act.

(i) The Relationship between the Act and the Supreme Court ruling in Sardar Syedna Saifuddin

On this blog, we have extensively discussed the judgment of the Supreme Court in Sardar Syedna Saifuddin v State of Bombay (the Dawoodi Bohra case). Recall that in that case, a Constitution Bench of the Supreme Court struck down the 1949 Bombay Prevention of Excommunication Act. The Bombay Act defined “excommunication” as “the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature”, and went on to add that these rights included “the right to office or property or to worship in any religious place or a right of burial or cremation.” The majority held that the Act violated right of religious denominations to manage their own affairs under Article 26(b) of the Constitution, and was not saved by Article 25(2)(b)‘s social welfare or reform exception, since it outlawed even those excommunications that were made purely on religious grounds.

Now, the Maharashtra Social Boycott Act defines a “community” as “a group, the members of which are connected together by reason of the fact that by birth, conversion or the performance of any religious rites or ceremonies, they belong to the same religion or religious creed and includes a caste, sub-caste…” The focus on “religious creed” as an addendum to “religion” (notwithstanding the absence of the word “denomination”) seems to suggest that groups like the Dawoodi Bohras will fall within the definition of “community”. Now, if that’s the case, then there are a number of provisions under Section 3 that rather clearly appear to speak to precisely those situations which, the Supreme Court held in Saifuddin, fell within the protected ambit of Article 26(b). 3(i) penalises obstructing a person from observing any religious custom; 3(ii) does the same for religious rites; 3(v) deals with preventing a person from accessing religious buildings, and 3(vi) does the same for cemetaries and burial grounds (an example that was specifically taken in Saifuddin); and 3(xv), as an omnibus clause, prohibits community expulsion (read: excommunication).

It appears, therefore, that unless one were to hold that a religious creed is not a religious denomination (and thus open the floodgates to threshold litigation over whether a particular group constitutes a creed or a denomination), a significant section of the Boycott Act is unconstitutional under the interpretation of Articles 25 and 26 advanced by the Saifuddin Court. One might argue that the problem of unconstitutionality can be got around in two ways: one, by excluding from the scope of the Act instances of boycotts that are imposed purely on religious grounds. That, however, appears to do violence to the plain language of many of Section 3’s sub-clauses, which are clearly meant to deal with religion-based community exclusion. The second is a similar move – i.e., to limit the operation of the Act to instances that may properly be characterised as a “social boycott” (as the name suggests). Here again, it is doubtful whether this interpretive move is possible, since in the scheme of the Act, the social and religious boycotts are inextricably linked (See Sections 3(i), 3(ii), 3(iii) and 3(viii).

This does not mean that I am arguing for the Act to be struck down – far from it. On this blog, I’ve argued on more than one occasion that the majority in Sardar Saifuddin is incorrect, that Chief Justice Sinha’s opinion is truer to the constitutional scheme, and that the decision should be reversed. A petition asking for just that has been pending with the Supreme Court for the last thirty years. Perhaps a challenge to the Maharashtra Anti-Boycott Act will finally compel the Court to reconsider (what I consider to be) one of its most damaging precedents.

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(ii) Implications for the Freedom of Assembly, Association, and the Freedom of Speech and Expression

Clearly, the Act prima facie infringes Articles 19(1)(a), (b), and (c). It is a rather trite proposition that the freedom to associate includes the freedom not to associate. Undeniably, the Act affects the freedom not to associate – in fact, that is the point! Section 3(iv) prohibits the cutting off of social or commercial ties, 3(viii) prohibits instigating others from social, religious, professional or business relations with the boycotted member – and of course, 3(xv) prohibits expulsion. The Explanation II to Section V states that persons who participate in a meeting with a view to impose a social boycott, or who vote for imposing a social boycott, are deemed to have committed an offence. This is a prima facie infringement of Articles 19(1)(a) and 19(1)(b).

There are two possible responses to this. One is to go down the route traveled by the Supreme Court in Venkataramana Devaru and by Chief Justice Sinha in Sardar Saifuddin: i.e., to view the law as furthering the mandate of Article 17’s prohibition of “untouchability”. Previously on this blog, I have argued that Justice Sinha was right in Saifuddin to read “untouchability” in a broad sense, and to include social ostracism and expulsion within its meaning. The issue then becomes a clash between rights under Article 19(1)(a) – (c) and Article 17.

The other response – and one that I am sympathetic to – is to read the “morality” restriction under Articles 19(2) – (4) as referring to constitutional morality. Previously on this blog, I have argued that a combined reading of Articles 15(2), 17 and 25(2) yield something that we can call the “anti-exclusion” principle: the Constitution respects the autonomy of groups and communities until the point (and no further) that their actions lead the exclusion of individuals from access to basic goods (including cultural goods) that are required to lead a dignified life. The Maharashtra Social Boycott law is based upon the anti-exclusion principle, and is therefore a reasonable restriction upon the Article 19 freedoms. I do feel, however, that a few of the sub-clauses of Section 3 will fail this test. For instance, I am not sure whether Section 3(xi) – dealing with preventing or obstructing children of the community from playing with children of specific families – will meet the constitutional threshold.

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I do not think that anyone will actually challenge the Social Boycott Law. If that does happen though, it will certainly be an interesting situation!

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PS. One interesting aspect is the reference in the Preamble to “fraternity” as a constitutional goal.

PPS. The history of anti-boycott legislation is a long one, of course. It goes back to the 1921 Burma Anti-Boycott Law, and was also proposed by Ambedkar to the Minority Rights Commission. Part of Ambedkar’s proposals were incorporated into the 1955 Protection of Civil Rights Act. Ambedkar discusses the anti-boycott law in Chapter 3 of What Congress and Gandhi Have Done to the Untouchables. 

Ambedkar and the Social Boycott

Previously on this blog, we have discussed how Article 15(2) of the Constitution, which guarantees non-discriminatory access to shops, public restaurants, hotels etc., has been read expansively by the Supreme Court to cover the domain of economic transactions more generally, and can be invoked to invalidate restrictive covenanting. We have also discussed how Chief Justice Sinha’s dissenting opinion in the Saifuddin case envisages a Constitution that is equally solicitous towards horizontal asymmetries of power as it is towards State coercion upon the individual. Textually, the Indian Constitution itself is keenly cognisant of horizontal asymmetries, as it guarantees three horizontally enforceable rights (Articles 15(2), 17, and 23), and further authorises the State to recalibrate the internal relationship between religious communities in a more egalitarian direction (Article 25(2)(b)).

As we have discussed earlier, in cases such as Zoroastrian Cooperative, Saifuddin, and others, the right to horizontal non-discrimination has come up against the right to freedom of association. Interestingly, this tension is neither new nor recent. Recently, I came across an extensive discussion about this problem, dating back to pre-constitutional times. In Chapter III of his 1945 text, What Congress and Gandhi Have Done to the Untouchables, B.R. Ambedkar outlines a Memorandum that he submitted to the 1930 Round Table Conference, dealing with political safeguards for the protection of the “Depressed Classes”. After beginning with the right to equal treatment, enforceable against the State, and drawn from the American Fourteenth Amendment as well as the 1920 Government of Ireland Act, he then proposes an “offence of Infringement of Citizenship“, drawn from the Reconstruction Civil Rights Act in the United States:

“Whoever denies to any person except for reasons by law applicable to persons of all classes and regardless of any previous condition of untouchability the full enjoyment of any of the accommodations, advantages, facilities, privilege of inns, educational institutions, roads, paths, streets, tanks, wells and other watering places, of public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience whether they are dedicated to or maintained or licensed for the use of the public shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.”

Implicit in this was Ambedkar’s view that equal citizenship entails equal access to public utilities, or public spaces (with an expanded definition of the “public”). Fascinatingly, he then quoted a colonial government source – a 1928 Bombay Committee Report, which had this to say:

“The Depressed Classes have no economic independence in most parts of the Presidency. Some cultivate the lands of the orthodox classes as their tenants at will. Others live on their earnings as farm labourers employed by the orthodox classes and the rest subsist on the food or grain given to them by the orthodox classes in lieu of service rendered to them as village servants. We have heard of numerous instances where the orthodox classes have used their economic power as a weapon against those Depressed Classes in their villages, when the latter have dared to exercise their rights, and have evicted them from their land, and stopped their employment and discontinued their remuneration as village servants. This boycott is often planned on such an extensive scale as to include the prevention of the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania. According to the evidence sometimes small causes suffice for the proclamation of a social boycott against the Depressed Classes. Frequently it follows on the exercise by the Depressed Classes of their right to the use of the common well, but cases have been by no means rare where a stringent boycott has been proclaimed simply because a Depressed Class man has put on the sacred thread, has bought a piece of land, has put on good clothes or ornaments, or has carried a marriage procession with the bridegroom on the horse through the public street.

We do not know of any weapon more effective, than this social boycott which could have been invented fur the suppression of the Depressed. Classes. The method of open violence pales away before it, for it has the most far reaching and deadening effects. It is the more dangerous because it passes as a lawful method consistent with the theory of freedom of contract. We agree that this tyranny of the majority must be put down with a firm hand, if we are to guarantee the Depressed Classes the freedom of speech and action necessary for their uplift.”

The important insight here is that in a society with pre-existing asymmetries of economic and social power, such power can be leveraged in a manner so as to discipline subordinated groups through the threat of exclusion from the economic and social life of the community, and thereby, from access to the public goods required to sustain a life with dignity (whether material or cultural). It is interesting to note that the Report specifically observes that technically, the boycott is lawful because it is consistent with the principle of the freedom of contract, but nonetheless must be outlawed. Of course, freedom of contract itself assumes a formally equal and hierarchy-free society (hence, Henry Maine’s famous “from status to contract“), which is rarely consistent with reality.

Based on the report, and his own observations, Ambedkar then suggested the following definition of “boycott” which he borrowed, in part, a previous Burma law:

“A person shall be deemed to boycott another who… refuses to let or use or occupy any house or land, or to deal with, work for hire, or do business with another person, or to render to him or receive from him any service, or refuses to  do any of the said things on the terms on which such things should commonly be done in the ordinary course of business, or… abstains from such social, professional or business relations as he would, having regard to such existing customs in the community which are not inconsistent with any fundamental right or other rights of citizenship declared in the Constitution ordinarily maintain with such person, or… in any way injures, annoys or interferes with such other person in the exercise of his lawful rights.”

The final text of Articles 15(2) (access to shops), 17 (prohibition of untouchability), 23 (prohibition of forced labour) and 25(2)(b) (authorising the government to make laws for access to Hindu religious institutions of a public character) together constitute a code that is a somewhat attenuated and diluted version of Ambedkar’s original – and radical – proposals: to have a Constitution that provided not only individual freedom and freedom of community, but also freedom from community. The expansive interpretations given to these articles in IMA v Union of India, Justice Sinha’s dissent in Saifuddin, and in PUDR v Union of India (which read “forced labour” to include exploiting a depressed market by refusing to pay minimum wage) represent something of an attempt to reclaim, in part, the radicalism that was lost somewhere in the framing of the founding document.

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(The civil rights movement demanding equal access to public facilities, led by Ambedkar, is documented in detail by Anupama Rao in her book, Caste Question. I have recently written a paper attempting to derive an “anti-exclusion” principle from the text and structure of the Constitution, available here.)