Gender Equality in the Armed Forces

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


On this blog, we have discussed in some detail the judicial approach to gender discrimination under the Constitution. Two recent judgments of the Supreme Court – delivered by a bench of Chandrachud and Rastogi JJ – have made an important contribution to contemporary jurisprudence on the subject. Both concerned the intersection of service law and gender equality – and, in particular, gender equality in the armed forces, a particularly fraught and thorny topic.

Babita Puniya

Secretary, Ministry of Defence v Babita Puniya concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of “females” into the army except where – and to the extent that – the Central Government might allow. In 1992, the Union Government issued notifications allowing women to join certain branches/cadres of the army (all were non-combat roles). These notifications – which were intended to operate for a stipulated period of five years – were later extended in 1996, 2005, and 2006, along with promotional opportunities. Then, in 2008, the Ministry of Defence issued a Circular authorising the grant of Permanent Commissions [PCs] to women, but only prospectively, and only in certain cadres.

Adjudicating writ petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the army on Short Service Commissions [“SSCs”], were entitled to PCs on par with their male colleagues. The Union of India appealed this decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.

Before the Supreme Court, the Union argued that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” (paragraph 28), and that in any event, Article 33 of the Constitution allowed for the fundamental rights chapter to be restricted when it came to the Armed Forces. It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.” (paragraph 31). In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.

These submissions were rejected by the Court. Chandrachud j. began his analysis by noting that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On the other hand, from 1991, there had been an “evolutionary process” towards inducting women into the armed forces (paragraph 50) – to the extent that in the 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women. In fact, this created an internal contradictions within the submissions of the union of India, as:

The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. (paragraph 52)

Going further, however, the Chandrachud J. noted that:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are „too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. (paragraph 54)

On a similar basis, the Court also rejected the blanket prohibition upon the grant of PCs to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis (paragraph 67). In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

Annie Nagaraja

The case of Union of India vs Lt. Cdr. Annie Nagaraja – involving Permanent Commissions in the Navy – was somewhat more complex. According to Section 9 of the Navy Act, women are not eligible for enrolment in the Indian Navy, except where – and on such terms and conditions – that the Central Government might specify (Chandrachud J.’s judgment refers to an interesting piece of history – at the time of the drafting of the Navy Act in 1957, there was a strong dissenting note in the Parliamentary Joint Committee objecting to this exclusion of women).

Now – simplifying the position somewhat – under the Navy Regulations, one of the qualifications for being inducted into the navy on a Short Service Commission [“SSC”] is that the applicant must be an “unmarried male.” SSC officers may subsequently be granted Permanent Commissions [“PCs”] on the basis of vacancies and suitability. In 1991, the Union Government issued a notification opening up certain branches of the Navy to women. Women, therefore, were entitled to take up SSCs, and it was noted that the policy for the grant of PCs would be formulated subsequently. Subsequently, in 1998, by another Notification under Section 9 of the Navy Act, more branches of the Navy were opened up to women. Soon after that in, in 1999, in a communication from the Ministry of Defence, it was clarified that women could serve on board ships, and that the policy governing PCs would be that which was already stipulated in the Regulations (see above).

Then, in 2008, the MoD issued another communication, stating that PCs to women SSC officers would be considered prospectively, and limited only to certain branches. In other words, women who had joined the Navy as SSCs following the opening up of recruitment after 1991, would not be considered for PCs. It was this that triggered the initial challenge before the Delhi High Court and the Armed Forces Tribunal, before finally winding its way to the Supreme Court.

Chandrachud J. began his analysis by noting that both the 1991 and 1998 Notifications lifted the bar for enrolment of women into the Navy, in certain branches (without expressly limiting them to SSCs) (paragraph 60). Consequently, when in 1999 the Government stipulated that the normal Regulations would apply for grant of PCs (which made them conditional on vacancies, suitability, and a recommendation from the Chief of Naval Staff), it was obvious that this would “cover both men and women serving on SSCs (paragraphs 64 – 65, 67). Consequently, the 2008 communication – which did not refer to these previous notifications and communications – could not change that fact.

As with Babita Puniya’s Case, however, the judgment’s bite lay in the analysis that came after the hard work of service law was done. In a section called “The Stereotypical Sailor”, the Court noted that the government had attempted to justify its stand by arguing that sea-duties were ill-suited for women as “there is no return to base”, and that Russian naval vessels had no separate bathrooms for women (paragraph 72). These arguments were roundly rejected, with Chandrachud J. noting that “the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.” (paragraph 74), and that:

arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies. (paragraph 74)

The Court concluded by moulding the relief in accordance with the different positions occupied by different sets of claimants, on the basis of the legal position that eligibility for PCs flowed from the 1991 and 1998 Notifications, and that the 2008 Communication making PCs prospctive from that date, was not valid (to that extent).

Analysis

Both judgments raise a few interesting issues. The first is that they add to the growing body of jurisprudence that brings the anti-stereotyping lens to issues of gender discrimination. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities – broad generalisations that reflected deep-rooted beliefs and assumptions about gender roles in society. As we have argued before on this blog, Articles 14 and 15 rule out discrimination based on such stereotypes and generalisations. While the Court’s historical record on this front – especially in the domain of service law – has been patchy, at least since 2007, there has been a more consistent application of the anti-stereotyping principle. These judgments, with their clear invocation of the principle, will make it even more difficult in the future for stereotype-based arguments to be justified in Court.

Secondly, these judgments reiterate that in a constitutional democracy, the Armed Forces are not – and cannot be – a rights-free zone. While Article 33 admittedly authorises the restriction of fundamental rights to the Armed Forces, any such restriction must be “necessary” for allowing the Armed Forces to fulfil their goals, and the burden of sowing necessity lies upon those who want to exclude the operation of fundamental rights. In both judgments, the Court was careful in how it navigated this thorny area: it reiterated the need for Article 33 to exist, while also ensuring that it could not be used as a sword to cut down the rest of Part III.

Thirdly, these judgments demonstrate an oft-neglected truth: that the Court ought not to bear the sole burden of articulating and enforcing fundamental rights. What is notable about both these cases is – as the Court itself noted in Babita Puniya – that the induction of women into the armed forces had been an evolutionary process that had begun in 1992. The State’s sweeping arguments about the unsuitability of women to be granted PCs, therefore, were undercut by its own evolving policy decisions. This made the task of the Court substantially easier: instead of forcing gender equality down the throat of a recalcitrant institution, it could simply point to how the institution’s own logic was at variance with the exclusionary arguments that it now put forward. Thus, instead of ending up in an adverserial situation – where the Armed Forces justified discrimination and the Court opposed it – what happened here was that the Court engaged in an immanent critique, essentially requiring the Armed Forces to follow their own policies to a logical conclusion.

Fourthly – and relatedly – this also shows, perhaps, the limitations of the possibility of reform through adjudication. Notably, the relevant provisions of both the Army and the Navy Act, which bar the recruitment of women into the Forces except where the government allows it – were not under challenge, and the Court was at pains to point out that fact, apart from also noting that the suitability of women for combat roles was not an issue about it. What would happen, however, if those Sections were to be challenged? Logically speaking, the anti-stereotyping approach – and, more particularly, the Court’s explicit rejection of blanket prohibition of PCs to women in command areas – clearly rules out the blanket restriction on recruitment in the Armed Forces (except where the government permits). Would that be a step to far for the Court to take, especially if the State and the Armed Forces were to take the defence of national security considerations? That would be interesting to see, but at the same time, the Army’s own opening up over the years – combined with the Court’s incremental approach in these cases – probably obviates the immediate imperative for more radical challenges.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]


The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

  1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

From Koushal to Navtej Johar: Round-Up

With the conclusion of the Section 377 litigation, here is a round-up of the ICLP essays, which have spanned the last five years.

A. Pre-Koushal

  1. Textualism v Structural Analysis – or why the Court ought to uphold Naz Foundation” (25 September, 2013).
  2. Is there an interpretive methodology for construing colonial era statutes?” (10 October, 2013).
  3. Naz Foundation and homosexuality: a humorous, historical aside” (10 December, 2013).

B. Koushal

  1. The Unbearable Wrongness of Koushal v Naz Foundation” (11 December, 2013)
  2. Koushal v Naz Foundation: Picking up the pieces and exploring the grounds of review” (12 December, 2013).
  3. Koushal v Naz: Issue-wise Round-up of commentaries” (13 December, 2013).

C. NALSA

  1. NALSA v UoI: The Supreme Court on transsexuals, and the future of Koushal v Naz (15 April, 2014).
  2. Nalsa v UoI and Koushal v Naz: Acts against the order of nature?” (16 April, 2014).

D. The Interregnum

  1. Foucault, Rubenfeld, Naz Foundation, and Article 15″, (4 October, 2014).
  2. Guest post: Sex, sexual orientation, and the courts” (27 August, 2015) (by Vansh Gupta).
  3. Notes from a foreign field: The Supreme Court of Belize strikes down its anti-LGBT law” (13 August, 2016).

E. Puttaswamy

  1. The Supreme Court’s right to privacy judgment – III: Privacy, surveillance, and the human body” (29 August, 2017).
  2. The Supreme Court’s right to privacy judgment – V: Privacy and decisional autonomy” (31 August, 2017).

F. Navtej Johar 

  1. Section 377 referred to a Constitution Bench: Some Issues” (8 January, 2018).
  2. Guest Post: Inclusive pluralism or majoritarian nationalism: Article 15, Section 377, and who we really are” (9 July, 2018) (by Tarunabh Khaitan)
  3. Guest post: on the presumption of constitutionality for pre-constitutional laws” (11 July, 2018) (by Tarunabh Khaitan).
  4. Guest post: against natural rights – why the Supreme Court should NOT declare the right to intimacy as a natural right” (17 July, 2018) (by Tarunabh Khaitan).
  5. Civilisation has been brutal: Navtej Johar, Section 377, and the Supreme Court’s moment of atonement” (6 September, 2018).
  6. Guest Post: Navtej Johar v Union of India: Key highlights” (9 September, 2018) (by Abhinav Chandrachud).
  7. “Guest Post: Navtej Johar v Union of India: What remains of Section 377?” (10 September, 2018) (by Vanshaj Jain).
  8.  “Navtej Johar v Union of India: Rethinking Rajbala and the way forward” (15 September, 2018).

 

Navtej Johar v Union of India: Rethinking Rajbala, and the Way Forward

(This is the concluding post in our series of essays examining the Supreme Court’s judgment in Navtej Johar v Union of India. An earlier version of this piece appeared in Scroll.)

As the dust settles over Navtej Johar v Union of India, attention must turn to the future. When, last year, the Supreme Court delivered the famous privacy judgment, it was immediately clear that it was both important in its own right, but also, equally important in the possibilities that it opened up for future expansion of civil rights. Navtej Johar – as I mentioned in my initial essay – was itself made possible by the privacy judgment. And Navtej Johar – in turn – now opens up a series of possibilities. Here are three of them:

A. “Manifest arbitrariness” as a ground for striking down laws

As readers of the blog are aware, we have previously discussed the long judicial tussle between the “classification” and the “arbitrariness” tests under Article 14 of the Constitution. To cut the long story short, the traditional rational classification standard under Article 14 has always been deferential towards the State, and incapable of addressing complex inequalities. Arbitrariness was introduced to mitigate the shortcomings of the classification standard, but has itself ended up being rather … arbitrary. Notwithstanding that, there has always been controversy over whether the arbitrariness standard is limited to invalidating executive action (which would, essentially, reduce it to a glorified Wednesbury principle), or whether it can be applied to invalidate statutes as well.

In the Triple Talaq judgment last year, at least two judges out of five held that “manifest arbitrariness” could, indeed, be applied by courts to invalidate statutes. It was unclear whether the “swing opinion” – that of Joseph J. – endorsed this principle. Subsequent judgments (delivered by two judges) appeared to believe that it did. However, the controversy has now been set to rest. In Navtej Johar – as Abhinav Chandrachud points out in his guest post – all five judges partially strike down S. 377 on grounds of manifest arbitrariness.

What does this mean for civil rights? There is one immediate implication. Three years ago, in Rajbala v State of Haryana (which I have analysed here), the Supreme Court upheld the State of Haryana’s amendments to the Panchayati Raj Act, which had imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. The judgment expressly held that the “arbitrariness standard” could not – and would not – be applied to test the law under Article 14. As Mihir Naniwadekar pointed out at the time, there was a strong argument that the Rajbala bench was bound to apply the arbitrariness standard, under existing precedent. Two judges out of five believed so in Triple Talaq, when they expressly stated that Rajbala stood overruled on this point. And that view has not been vindicated by the verdict of all five judges in Navtej JoharRajbala, therefore, requires reconsideration.

(N.B. I should add that, as previously discussed on this blog, I do not think the arbitrariness standard – as it stands, and without further development – is constitutionally defensible. However, it is what it is.)

B. Discrimination as a contextual enquiry

Justice Chandrachud’s concurring judgment in Navtej Johar argues at great length that the question of whether a law or a rule has a discriminatory effect must be answered by taking into account the background social context in which the law operates. In 2013, in its judgment upholding Section 377, the Supreme Court in Koushal v Naz Foundation had held that in criminalizing “carnal intercourse against the order of nature”, the section only penalized “acts”, and not persons; consequently, the question of discrimination did not arise. In a detailed repudiation of this facile argument, Justice Chandrachud examines how, when Section 377 interacts with the existing social and moral proscriptions, its effect is to confine the LGBT+ community to the proverbial closet, causing great harm to their individuality, personhood, and dignity. Whatever the form of the law, therefore, its effect – when placed within the social context – is discriminatory.

This focus on effect and context has the potential to significantly advance discrimination jurisprudence in India. As an example, take once again the judgment in Rajbala v State of Haryana. While upholding educational disqualifications in that case, the Court noted that it was only education that allowed people to distinguish between right and wrong. What the Court didn’t take into account, however, was that despite our legal and constitutional framework, access to education continues to be skewed along caste, gender, and economic lines, for a multiplicity of reasons (ranging from stereotypes about women’s role in the family, to simple economic stress that does not permit the luxury of sending children to school). This has been pointed out repeatedly, and is well-documented. For example:

A glimpse at Haryana’s background tells us how deeply it is entrenched in patriarchy. It has one of the most skewed sex ratios in India — 877 overall and 837 in the 0-6 year age group. Male literacy rate is 85 pc, against 66 pc for females, a significant gap.

 

Therefore, while the law in Rajbala appeared to be about incentivizing education (a laudable goal), its effect was to further marginalize from the political process those who were already most marginalised. If Chandrachud J.’s reasoning in Navtej Johar is followed, this background context cannot be ignored.

The Supreme Court has an immediate opportunity to correct its error in Rajbala: the State of Rajasthan passed a very similar law at around the same time, which is yet to be adjudicated upon by the Court.

It is, after all, never out of season to dream.

 C. Analogous grounds

In her concurring opinion, Justice Indu Malhotra argues that discrimination on grounds of sexual orientation violates Article 15(1) of the Constitution. Article 15(1) prohibits discrimination on grounds of sex, race, religion, caste, and place of birth. Justice Malhotra takes the view, however, that Article 15(1) covers not only these five stipulated grounds, but also “analogous” grounds: that is, characteristics that bear a family resemblance to sex, race, religion etc. What is common to the “grounds” under 15(1) – Justice Malhotra argues – is that they are either immutable (i.e., impossible or extremely difficult to change), and/or deeply linked to personal autonomy. Sexual orientation, thus, is an “analogous ground”, and therefore protected under Article 15(1).

Malhotra J.’s interpretation is difficult to sustain on the text of Article 15(1), which makes it clear that it refers to a “closed list of grounds” – i.e., the Court cannot add to the five grounds stipulated therein. However, if Justice Malhotra’s view is accepted in future judgments, it does open up Article 15(1) to a range of discrimination claims: for example, age, disability, political belief, and economic status are just a few of the possible “grounds” that can be invoked as analogous, and therefore, protected by a non-discrimination guarantee. Here, once again, the Court must tread carefully, and develop the law in an incremental and rigorous fashion.

Conclusion

For a long time now, the Indian Supreme Court’s thinking on issues of equality and non-discrimination has been static. This is contrary to other jurisdictions such as Canada and South Africa, where judges have deepened their understanding of these questions, over time. Navtej Johar’s judgment provides us with a gateway to updating our own understanding of Articles 14 and 15(1) of the Constitution, to match with ever more sophisticated accounts of what constitutes inequality and discrimination. However, it is only the foundation stone: the future development of the law is now in the hands of the courts.

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

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

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

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

A. The Chief Justice and the Primacy of Choice 

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

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

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

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

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

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

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

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

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

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

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

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

B. Justice Nariman and the Presumption of Constitutionality

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

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

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

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

C. Justice Chandrachud and Indirect Discrimination

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

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

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

Chandrachud J. goes on to note:

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

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

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

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

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

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

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

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

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

Consequently, to sum up:

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

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

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

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

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

D. Justice Malhotra and a Truer Vision of Equality  

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

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

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

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

E. Odds and Ends 

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

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

Justice Nariman observes:

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

And Chandrachud J.:

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

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

The Road Ahead 

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

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

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

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

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

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

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

Guest Post: The Adultery Challenge – Three Roads Ahead

(This is a guest post by Abhinav Sekhri.)


The Supreme Court of India is currently hearing a petition filed by Joseph Shine questioning whether the offence of “adultery”, defined and punished under Section 497 of the Indian Penal Code, 1860 [IPC], and associated procedural rules under Section 198(2) of the Criminal Procedure Code 1973 [Cr.P.C.], are constitutional. The hearings are in full swing, and recent media coverage suggests that the Court is keen on definitely doing something, unlike the previous occasions when the offence was challenged and its validity upheld. The question then is, what might the Court do? This post draws on an article I published some time ago discussing the legality of adultery laws and poses the choices before the Court, discussing the potential pros and cons of going down any of those paths. But first, a quick recap on the law itself.

The Law on Adultery

Section 497 IPC says:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

It criminalises marital infidelity, but not all kinds. The criminal kind needs sexual relations between a person (commonly a man) and the wife of another man, without his consent or connivance. It is not a crime if you cheat on your spouse with an unmarried woman. Further, if you do cheat on your spouse with a married woman, that wife is deemed to be a victim whatever the circumstances. This separate treatment goes further and becomes more problematic when we consider the special procedural rules installed for registering adultery cases.

Indian criminal law follows a principle that anyone can start the criminal law machinery. This rule has exceptions, found in Sections 190-199 of the Criminal Procedure Code, 1973 [Cr.P.C.] (in respect of IPC offences). Section 198 Cr.P.C. creates an exception by restricting persons who can start cases about “Offences against Marriage”, that are defined and punished in Chapter 20 of the IPC. Perhaps respecting the private nature of the underlying conduct, Section 198(1) needs complaints by persons aggrieved by the offence to start cases. It goes on to then tell us who the law considers as aggrieved, and Section 198(2) says:

For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the [IPC]: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

The wife is deemed to be the victim of adultery in Section 497 IPC. But she isn’t aggrieved by the offence to be able to trigger the legal machinery. That aggrieved person will be her husband, and if he isn’t around, his nominee. That is the strange reality of the law on adultery: a victim isn’t aggrieved to exercise her right of launching private prosecution. It is a reality that has survived judicial scrutiny on three prior occasions, but is now again in the spotlight, perhaps for the last time.

The Different Ways of Framing the Problem

Having seen what the law on adultery says, it’s time to turn to what are the problems it seemingly poses. There are different ways to frame this problem, and broadly one could frame the question thus:

  • Type I: Is Section 497 IPC illegal because adultery shouldn’t be a crime at all?
  • Type II: Are Section 497 IPC and Section 198(2) Cr.P.C. illegal because they perpetuate unconstitutional gender-based discrimination?
  • Type III: Is Section 497 IPC illegal because it differentiates within adulterous relationships without any rational basis for that classification?

Historically, the Supreme Court has dealt with the adultery laws on three different occasions. None of these involved a broad Type I Challenge. Instead, the Court has mostly faced Type II Challenges. In Yusuf Abdul Aziz [1954 SCR 930], the petitioner argued that Section 497 IPC was unconstitutional because it unfairly discriminated between men and women – exempting women from punishment. In Sowmithri Vishnu [(1985) Suppl. SCC 137], the petitioner argued that both Section 497 IPC and Section 198(2) Cr.P.C. were bad for unfairly discriminating on the basis of sex. There was a Type III challenge too, where the petitioner argued that Section 497 IPC didn’t have any basis to only punish one kind of adulterous relationship. In V. Revathi [AIR 1988 SC 835], again only a Type II Challenge was made as the petitioner argued that Section 198(2) Cr.P.C. was unconstitutional for unlawfully discriminating against women by not considering them “aggrieved” to trigger the legal process.

Why? Why did nobody make it their primary claim that the Supreme Court should Section 497 and Section 198(2) down because adultery should not be a crime? It was because, at some fundamental level, all these petitioners and their counsel accepted that the Supreme Court is not the place to make these arguments. It is not the Court’s business to decide whether or not certain conduct should be a crime. The decision to criminalise is ultimately a reflection of what conduct the society considers bad enough for it to warrant censure and sanctions. Since society elected a legislature to reflect these, and other choices, the decision to criminalise is traditionally identified as a legislative choice. Parliament decides whether the conduct should be criminalised. When it expresses that will through a statute, the courts are bound to examine the validity of that legislative measure against the minimum barometers set out by the Constitution.

Thus, the previous challenges to the adultery provisions were reflective of this traditional approach: petitioners approached the Court to argue that the manner in which conduct had been criminalised did not pass constitutional muster. The present petition in Joseph Shine is also framed as a traditional Type II Challenge. It argued that the adultery laws perpetuate unconstitutional discrimination, seeking a review of the previous cases where the Court had held otherwise. The Supreme Court issued notice last year and agreed to go down this path primarily because it had a problem with the provisions not being gender neutral. But, going by the news coverage, the Supreme Court now seems to be mulling about whether it wants to engage in a Type I Challenge instead and consider why adultery should be a crime at all. Notice the assumption underlying the question itself: there is a kind of conduct which a legislature cannot make a crime, and the Court can identify this category.

While adultery cases did not involve Type I Challenges, such Challenges to penal statutes themselves are not totally absent from the history of Indian constitutional law. In fact, a number of cases were filed in the 1950s against new social welfare legislation which used criminal punishments against those violating licensing laws, arguing that such conduct could not be a crime. The Court agreed that a category of conduct beyond the scope of criminalisation does exist, and it located this within the Constitution itself in Article 19 rights to freedom read together with its many restrictions. Thus, in Harishankar Bagla [1955 SCR 313], the petitioner unsuccessfully argued that licensing laws on cotton were unconstitutional as they violated the rights guaranteed under Article 19(1)(g) and (f). Beyond Article 19, what else might be identified in the category of conduct that can’t be penalised? The intuitive answer is the “right to life and personal liberty” guarantee under Article 21. While the Maneka Gandhi reading of Article 21 only did this indirectly by requiring laws to be “just, fair, and reasonable”, the recent recognition of a right to privacy within Article 21 surely works as a basis to make Type I Challenges.

The Implications of a Narrow or Broad Approach

A Type II Challenge in Joseph Shine would mean considering whether or not the statutes perpetuate illegal discrimination. This would involve testing the law on the basis of Article 14, and also the Maneka Gandhi version of Article 21 to see whether the adultery laws are “just, fair, and reasonable”. But if the Court sticks to its guns and makes the adultery petition a Type I Challenge, then it must do more. It must decide whether consensual sexual relationships between adults can be criminalised, even if they involve marital infidelity. It cannot answer this question by testing the mechanics of the statute under Article 14, but will have to make a substantive inquiry, turning to Article 19(1)(a) or perhaps the right to privacy under Article 21, and the reasonable restrictions to these rights. Thus, the Court would have to decide whether criminalising adultery to protect the “sanctity of marriage” as the Central Government seems to argue, is a purpose falling within the “decency of morality” clause of Article 19(2). Similarly, it would have to engage with Puttuswamy and the separate opinions therein to establish how it will test the state intervention into this sphere of conduct. The statutory provisions on adultery can arguably be found constitutionally wanting in both scenarios. So what should the Court do in this situation? Play it safe and stick to a traditional approach based on the equality clause, or enter the substantive debate on criminalisation. There are pros and cons to both options.

If the Court decides to play it safe, then it can set the record straight on the previous cases. Moreover, it can avoid a debate about what the Court thinks is conduct worthy of criminal sanctions; an expression of societal mores traditionally expressed through elected representatives. But since there are constitutionally protected spheres of conduct, the Court can’t fully avoid that question. If it does, then, decide to go ahead and address the substantive issue fully, it can lead to a Constitution Bench of the Supreme Court clearly identifying a set of basic principles that legislatures must adhere to while drafting criminal statutes, and locate these principles within the constitutional text. For instance, if the Court holds consensual sexual relations between adults are beyond the pale of criminal law, it can do so by locating this conduct within the scope of Article 19(1)(a) [right to freedom of speech and expression], or Article 21. Arriving at these basic constitutional minimums would potentially affect many other offences which involve similar conduct, as litigants get emboldened to file petitions. For instance, the principle would extend to excluding this entire category of conduct from the realm of Section 377 IPC, the provision currently criminalising “unnatural sex”, even if it might be consensual and between adults. Ultimately, in the long run, the Court can trigger a fruitful late-spring cleaning of the Augean Stables that are the variety of crimes punishable under many statutes across India.

But there is another side to that coin: the Court will now invite litigation challenging the legality of substantive crimes and further trample upon traditionally legislative functions. Already, the Court has broadened its jurisdiction to assume plenipotentiary powers and don the role of the White Knight in this horribly corrupt India. As Anuj Bhuwania argues, the Court has increasingly become inscrutable in carrying out this role, rendering poorly reasoned judgments or not rendering judgments at all or governing by a stream of non-reasoned orders, to slowly become part of the problem itself. This recent history suggests that opening up the gates for litigation will only lead to more chaos. And there is more basis for worry in this particular sphere of judicial review of substantive criminal law issues. The last major opportunity the Court had to engage in this kind of analysis was when it was asked to decide the constitutionality of the defamation offence, but it failed to address core legal issues and hid behind a veil of prose, rendering that decision only fitfully useful in future cases. The consequences of judicial intervention in Joseph Shine – regardless of the verdict – are not going to be so unremarkable given its status as a Constitution Bench decision.

Conclusion 

Recently, my friend and fellow skeptic Gautam Bhatia in an op-ed laid out a rival approach to the “narrow approach” where the Court sticks to the legal issue to avoid the “real” ones. This is what he called the “transformative approach”, where the Court is fearless enough to “erase and remedy long-standing legacies of injustice”. I have reservations in how Bhatia imagines the Court should go about this task, but Bhatia is right in his underlying premise, that if the Court has already broken down the barriers in terms of traditional power-relations between the different branches of government in India, it might as well do something useful. What holds me back from cheering him on is that there is too much to show that the manner in which the Court carries out its core function of answering legal issues – if it still is the core function – makes a transformative approach a double-edged sword. By inviting the Court to widen its range of targets, litigants run a risk that the Court is not going to stick to the identified targets. It will pick and choose which ones it wants to address, how to address them, and whether it wants to bring in new targets which you only find out while reading the judgment. Thus, at heart I yearn for more principled criminalisation of conduct in India, something that the Constitution Bench decision in Joseph Shine can help realise. But history often repeats itself, and that history tells me that the kind of reasoned decision needed to help realise this objective is unlikely to emerge. As I was reminded seeing the recent England-India test match: it is the hope that kills you.

 

Guest Post: On the Gendered Criminalisation of Adultery

(This is a guest post by Dr. Tarunabh Khaitan, discussing the constitutional challenge to adultery, which is presently being heard by a Constitution Bench of the Supreme Court.)


As the Supreme Court considers the constitutionality of a gendered criminalisation of adultery, is has the opportunity to reorient Indian fundamental rights jurisprudence in several significant, and necessary, ways.

Article 21

As Anuj Bhuwania has convincingly showed, the post-Emergency PIL-turn in the Supreme Court did nothing to fix the main weakness of our constitutional jurisprudence, represented by the now overruled judgment in ADM, Jabalpur—the refusal to take civil liberties seriously. Even as the Court became populist and developed a social rights jurisprudence, its record on civil liberties remained mixed at best.

Now, the Court has an opportunity to reinvigorate the guarantee of ‘personal liberty’ in Article 21 by underscoring firm liberal limits on the powers of the police state in relation to its citizens. It should also recognise that criminal law is a particularly blunt tool even when there is a genuine problem, and must be a tool of last resort (and must require very special justification). A robust articulation of personal liberty, and a rigorous proportionality test for its infringement will give the much-needed vigour to the guarantee of civil liberties protection under Article 21.

Article 14

While Article 21 should be the main vehicle for a finding of unconstitutionality in this case, the Court also has an opportunity to revisit its muddled Article 14 jurisprudence. In this chapter, I had argued that the arbitrariness doctrine under Article 14 confuses administrative law standards with constitutional review. I also showed that, contrary to what is commonly believed, the arbitrariness standard is usually deeply deferential to the state, and does not in fact leave Article 14 with sufficient bite. Finally, I argued that, at least with regard to legislative review, Article 14’s classification test should be reinterpreted in a less formalistic and less deferential manner than has hitherto been the case. In particular, the real-world impact of the classification, both material and expressive, should be part of the justification analysis under Article 14.

Article 15

The gendered dimension of the criminalisation of adultery also affords the Court with an opportunity–in conjunction with its anticipated judgments in the s 377 and the Sabrimala cases–to articulate a meaningful Article 15 jurisprudence. The criminalization of men only for adultery affords the court to identify that the disadvantage caused by discriminating can be both material as well as expressive. In three instant case, clearly the male adulterous partner suffers material and expressive disadvantage inflicted by criminalization. But even though she is not criminalized and may not therefore suffer material disadvantage, the expressive harm inflicted by the provision on women is significant. The symbolism behind the provision reflects attitudes that treat women as property of men. Section 497, IPC, which criminalises adultery, permits no other reading—it allows the husband to give his ‘consent or connivance’ to another man having sex with his wife, in which case no offence is committed. It is a collection of such social norms that support the institution of patriarchy, and their expressive force cannot be underestimated.

Furthermore, the provision also discriminates on the ground of marital status. But for the woman concerned being married, the offender would not have committed a crime. The social construction of gender norms is deeply intertwined with the norms surrounding marriage. Section 497 embodies a conception of marriage which entails the transfer of a woman (as property) from her father to her husband. Its gendered aspect cannot be separated from its connection with a particularly patriarchal understanding of the institution of marriage.

It is true that Article 15 is a closed list, and the Court has to do some creative interpretation to declare that ‘marital status’ is a constitutionally protected characteristic. There are two options before a progressive Court: either interpret ‘sex’ broadly to include ‘marital status’, given the deep sociological connection between the two. Courts in India, and elsewhere, have after all read pregnancy, maternity, sexual orientation, gender identity and other gendered characteristics as aspects of ‘sex’/’gender’ protection. A second alternative would be, as I argued in this paper, to read Article 15 as a sub-species of Article 14, and use the broader mandate of Article 14 to supply new grounds under Article 15. This second approach requires a caveat—while it is true that Article 15 is a sub-species of Article 14, the level of protection afforded under Article 15 is of a special character. Courts cannot continue to apply the same level of scrutiny to a law that distinguishes between sellers of tea and sellers of coffee (which is an Article 14 case, but not an Article 15 case), and one that distinguishes between Hindus and Muslims (which is an Article 15 case). This invites the Court to articulate a clear jurisprudence of the socio-political and economic conditions that elevate a characteristic for special protection under discrimination law (on this issue, see chs 2 and 3 of A Theory of Discrimination Law, especially pp 31-38 and 49-60).

Levelling-Up

To be clear, a finding of discrimination does not entail that the solution is to criminalise men as well as women. When two groups are treated differently, there are two ways of making them equal: either you bring the dominant group down to the level of the disadvantaged group (“levelling-down”) or you lift the disadvantaged group up to the level of the dominant group (“levelling-up”) (see, generally of A Theory of Discrimination Law, especially pp 153-4). It is clear that the right judicial response to discrimination in this case would be to level up by decriminalizing men, rather than level down by criminalizing women as well.


(Dr Tarun Khaitan is an associate professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Guest Post: Against Natural Rights—Why the Supreme Court should NOT declare the right to intimacy as a natural right

(This is the third and final guest post by Professor Tarunabh Khaitan on the 377 Hearings, which concluded today.)

As the Supreme Court prepares to defang the provision of the Indian Penal Code that criminalises ‘carnal intercourse against the order of nature’, it might be tempted to rely on its recently-revived ‘natural rights’ jurisprudence in order to do so. It is not hard to imagine that some of the judges might be tempted to hold that the ‘right to intimacy’ is an inherent and irrevocable ‘natural right’ (or, simply, declare it to be a facet of the right to privacy, which in turn has been held to be a natural right—I do not doubt that intimacy is a facet of privacy, or that privacy is indeed a fundamental right—my only complaint is against their characterisation as natural rights).

The rhetorical implications of such a move could be significant—the Court would be saying that the ‘natural order’, far from condemning homosexuals, requires their protection. Unlike the two previous posts on these hearings (available here and here), which urged the Court to be expansive in its holdings, I will argue in this post that the Supreme Court should not rely upon the language of natural rights in its judgment in this case. In fact, it would do well to retreat from the expansive embrace of natural rights in Puttaswamy to the extent it is possible for a smaller bench to do so.

Let us begin with Golaknath, that famous precursor to Kesavananda Bharati, where the Supreme Court held by a majority in 1967 that fundamental rights in the Constitution were unamendable:

“fundamental rights … are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. … ‘Fundamental rights’ are the modern name for what have been traditionally known as ‘natural rights’. … Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights.” [Paragraph 22, Justice Subbarao]

Even as Justice Subbarao equated fundamental rights with natural rights, he noted that although the right to property counted as a natural right, the rights of disadvantaged minorities against discrimination did not (although the more general right to equality did). This is the nub of the problem with the natural rights discourse—it has traditionally had a libertarian orientation which robustly protects the right to property (including, arguably, intellectual property) and the right to life of a foetus, but becomes faint-hearted when it comes to the enforcement of socially transformative rights like the right against discrimination or the right to employment. And it has had an intellectual history in recent Western thought that has been hostile to LGBTQ rights.

In Kesavananda Bharati, the Court spoke in multiple voices on all sorts of questions, including on the place of natural rights in the Constitution. The rightly-overruled judgment of the Supreme Court in ADM, Jabalpur conducts a superficial exegesis of what the majority actually held in Kesavananda with regard to natural rights, claiming that 7 judges on the Kesavananda bench rejected the natural rights thesis [at para 548]. This reading of Kesavananda is confirmed in another Emergency-era case called Bhanudas Gawde [para 41-2]. I must confess to not having checked myself whether this reading of the meandering and complicated judgment in Kesavananda is correct, ie whether a majority in that case did indeed hold that natural rights jurisprudence has no place in Indian law.

At least according to Justice Khanna, however, whose judgment came to be seen as the opinion of the Court in Kesavananda:

“It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the Constitution or the laws made by it. But independently of the Constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced.” [para 1509]

This must be seen as the correct position on natural rights in Kesavananda. Any other reading of the case would suggest that there are two independent, if overlapping, limits on the power of amendment—the basic structure of the constitution and some pre-constitutional, irrevocable, natural rights. Such a reading would entail that Kesavananda merely added a new ground for reviewing amendments to Golaknath. We know, however, that the Court in Kesavananda expressly overruled Golaknath. Thus, the only reading of Kesavananda’s position on natural rights that is compatible with the basic structure doctrine as the sole ground for limiting the amending power is the one articulated in Justice Khanna’s judgment.

Recent cases, however, have resurrected the natural rights discourse. In Basantibai Khetan, the Bombay High Court held in 1983 that the right to property was a natural right [para 19]. In NALSA, a 2-judge bench of the Supreme Court held that “Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.” [para 62]. Perhaps most crucially, in Puttaswamy, several judges on the 9-judge bench of the Supreme Court—some selectively citing passages from Kesavananda Bharati—declared the right to privacy to be an inherent, inalienable natural right [Chandrachud J, para 40-46, 119; Justice Bobde, para 12, 16; Nariman, para 92]. Justice Chelameswar was the only judge on the Puttaswamy bench who did not join the natural rights bandwagon.

Whatever individual judges in Kesavananda might have said, if my argument above that Justice Khanna’s position on natural rights is the most coherent reading of the case on this point is correct, Indian courts are permitted to note that an express or implied fundamental right embodies or recognises some natural right (as the courts in Khetan and NALSA do), but are not permitted to directly enforce or recognise any natural rights without the mediation of the constitutional framework. To the extent that Puttaswamy does this, it would be bad in law (caveat: I believe that Puttaswamy rightly held that the right to privacy is an implied right that flows from other fundamental rights, my only challenge is to any additional justification for the ruling supplied by relying on privacy as a natural right).

Apart from being potentially in breach of stare decisis, the resurrection of the natural rights discourse in Puttaswamy is unfortunate and unnecessary. It is unnecessary because everything the Court needs doctrinally and normatively is already available in the constitutional provisions and values, its historical ethos, and its basic structure. These constitutional resources are sufficient to hold that habeas corpus cannot be suspended, that transgender persons have a fundamental right to equality, non-discrimination and liberty, and that the right to privacy is a fundamental, irrevocable, constitutional right. Seeking additional support from a dubious notion of natural rights does no good, and has the potential to do harm.

The resurgence of the natural rights jurisprudence—rooted in a conservative Christian ethos—is unfortunate because of its traditionally regressive role in promoting libertarian values, including its hostility to the right to abortion, homosexuality and material redistribution. It will be particularly galling for the Court to use a philosophical concept that whose main intellectual proponent, John Finnis, advocated for the continued criminalization of homosexual conduct.

Apart from its conservative roots, the natural rights discourse is too amorphous to be entirely safe in the hands of the courts. True, the basic structure doctrine is also amorphous, but our constitutional text and history place limits on what a court can find as part of the basic structure of our Constitution. The natural rights discourse places no such limit—what is to prevent a court from saying that my interest in a copyright or in hate speech is my natural right?

Lastly, LGBTQ activists have long challenged ideas of ‘naturalness’, a notion that has typically reflected values and mores of the powerful sections in a society. As noted queer theorist Judith Butler wrote in Gender Trouble, her “dogged effort to ‘denaturalize’ gender” emerged “from a strong desire … to uproot the pervasive assumptions about natural or presumptive heterosexuality that are informed by ordinary and academic discourses on sexuality.” It is hardly surprising that Butler sees denaturalization of gender and sexuality as a precondition for true liberation. The concept of a preordained natural order is, after all, status-quoist in its essence. Its naturalness is only evident to those who benefit from things as they are.

The petitioners have asked the Court to recognise their constitutional rights. The Court will do them a disfavour to insist that their rights are not just constitutional, but also somehow natural. The natural order of things has seemed unfair from the vantage point of those on its margins. Arguments invoking the natural order have a habit of getting in the way of things as they should be. Ours is a transformative rather than an acquiescent constitutional heritage. It is a tradition informed by voices from the margins of society, and not just its natural core. That is the tradition we need to invoke as we extend the ethos of inclusiveness to a long-excluded minority, rather than rely on an at-best elusive, at-worst reactionary, notion of natural rights.

(Dr Tarunabh Khaitan is an Associate Professor in Law at Oxford and Melbourne, and the General Editor of the Indian Law Review. The views expressed are his own, and not attributable to any of these institutions. I am grateful to Ira Chadha-Sridhar for her help with caselaw research.)

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.)

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 DelhiSanghamitra 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 RailwayMadhu 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.