Guest Post: The Hijab Case through the Lens of Intersectionality

[This is a guest post by M. Jannani.]

---

In my previous post, I had analysed judgments delivered by the Kenyan courts in Mohamed Fugicha v. Methodist Church and how they had applied of the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the uniform, issued by a school in Kenya. I had also discussed how the Kenyan courts had applied the indirect discrimination test laid down in the Sarika case. In this blog, I take a step further and argue why the Hijab case would benefit from the import and application of the Sarika test by Indian courts. The first part of my essay will discuss why the direction issued by the pre-university education department of the Karnataka government has the effect of intersectional discrimination upon female Muslim students. The second part will discuss why the indirect discrimination tests laid down in Fraser v. Canada or Griggs v. Duke Power Company should not be applied by the court to the Hijab case. In the third part, I examine how the principle of reasonable accommodation interacts with the doctrine of indirect discrimination and its relevance to the present case.

Intersectional discrimination

In Navtej Johar v. Union of India , Justice Chandrachud’s concurring opinion recognized that claims of discrimination can be made on more than a single ground under article 15 of the Constitution of India. This view was affirmed by the Supreme Court in Ravinder Kumar Dhariwal v. Union of India.  In Patan Jamal Vali v. The State of Andhra Pradesh the Supreme Court discussed in length the difference between single axis discrimination and intersectional discrimination. It also specifically held that:

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.” (Emphasis mine)

The restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities. This is best captured by the following excerpt from an article by Maleiha Malik titled Complex Equality: Muslim Women and the ‘Headscarf’ which explains how the restriction imposed by different governments on headscarves worn by Muslim women is not only an attack on their religion but also a form of gender-based discrimination:

“One reason that the gender aspects disappears within the analysis is because it uses single axis definitions of equality which are designed to focus exclusively on one ground of inequality, e.g. sex or religion or race. However, the discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination; as well as a qualitative change in how multiple discrimination undermines Muslim women’s agency. The structure of single-axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discrimination: e.g. sex and religion and race. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination. The need for a single hypothetical comparator within single axis equality forces a stark choice. If gender is chosen then majoritarian definitions of woman may marginalise the needs of Muslim women. If religion is preferred then this often reflects the needs of the Muslim man as the representative of religion rather than Muslim women. Complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy. As well as examining gender oppression by Muslim men within minority Muslim communities, complex equality also takes into account the power of the state and majority women vis a vis Muslim women.” (Emphasis mine)

Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities- gender and religion. Hence, the restriction is one that has an effect of intersectional discrimination.

The courts should avoid the application of the tests laid down in Fraser or Griggs to the Hijab case

I will start by acknowledging that the doctrine of indirect discrimination is in its nascent stages of legal development in India. But that shouldn’t stop the courts from applying the doctrine of indirect discrimination to the Hijab case which is a textbook case of indirect discrimination – one where the restrictions may seem facially neutral, but has a disparate impact on female Muslim students who wear the Hijab. The Indian Courts on the question of indirect discrimination have relied on the Fraser v. Canada and Griggs v. Duke Power Company, as had been mentioned in a previous essay on this blog. I argue, why the courts should not apply the two tests in this specific case.

As I had mentioned in the previous section, the current case is one that involves a group of persons (female Muslim students) who face discrimination due to their intersecting identities. In Griggs v. Duke Power, the question before the Supreme Court of the United States of America was whether the employment requirements had a disparate impact on African-Americans because of their race. In the case of Fraser v. Canada, the Supreme Court of Canada evolved the indirect discrimination test in a case where a pension plan had an effect of adverse impact discrimination on women. Thereby, it can be observed that the courts in these two cases have evolved the test in the specific context where the individuals have been subjected to indirect discrimination on a singular aspect of their identity i.e., race or gender.

These tests have been applied by the Indian Courts primarily in cases of indirect discrimination where a group of persons or an individual has been subjected to discrimination on the basis of one factor of their identity. For example, in Nitisha v. Union of India (where the Supreme Court applied the Fraser test), the court looked into whether the requirement laid down for women to attain permanent commission in the Indian Army was one that had the effect of gender-based discrimination. Similarly, in Madhu v. Northern Railways (where the Supreme Court applied the disparate impact principles laid down in Griggs v. Duke Power) the Delhi HC looked into indirect discrimination where the discriminating factor was only gender.

On the other hand, In Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court remarked on the dangers of courts adopting a legal analysis which looks at discrimination only through a single axis in cases where an intersectional approach is required. The relevant parts of the judgment are as follows:

“A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”. Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that “but for” that identity, they would have been treated in the same way as a comparator. Therefore, their treatment is irrational and unjustified.

By exhibiting attentiveness to the ‘matrix of domination’ created by the intersecting patterns at play, the Court can more effectively conduct an intersectionality analysis. A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.” (Emphasis supplied)

Thereby, tests laid down in Fraser or Griggs which have been formulated in a context where the affected persons were subjected to discrimination on a single factor of their identity should not be applied to the Hijab Case wherein the persons are being exposed to indirect discrimination due to their intersectional identities. If either of the two tests are applied to the latter case it renders invisible the discrimination faced by the female Muslim students by putting them into a homogenous religious group of ‘Muslims’ and does not acknowledge the specific dimension of oppression that interacts with their religious and gender identity. 

The present case demands for the import of the test laid down in the Sarika judgment

In the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School , the England and Wales High Court examined whether a girl student from a minority religious community in the region i.e., the Sikh community, was subjected to indirect discrimination. As one can notice, the judgment begins with a recognition of how ‘school girls’ had lost cases before the court where they exerted their right to wear articles of faith along with their school uniform. The judgment also recognises her gender and religious identification, and addresses her as a ‘Sikh girl’ or ‘Sikh school girl’, resulting in acknowledging her intersectional identity. Similarly, the Kenyan Court of Appeals decision in Mohamed Fugicha v. Methodist Church looked into the question of indirect discrimination in a case where hijabs were restricted due to which a certain groups of students faced indirect discrimination. The group in this case were female Muslim students who were affected by the discrimination due to their intersectional identities (religion and gender). The Kenyan Court of Appeals applied the test laid down in the Sarika judgment. Though the courts may not have explicitly addressed the aspect of intersectional discrimination of persons in these cases, they have applied the specific test to recognise the indirect discrimination, where they have identified the groups with their intersectional identities as either ‘Sikh school girl’ or ‘female Muslim students’ as the case maybe. Thereby, Sarika test is more appropriate to cases where the doctrine of indirect discrimination is invoked with respect to persons who may be disparately impacted due to their intersecting identities since they formulated and applied in such contexts.

The Sarika judgment and the Essential Religious Practices Test

The judgment in Sarika referred to the following factors laid down in the case of R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 to access whether a religious belief in the case was one that was genuine:

(a) …when the genuineness of a claimant’s professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…”;

(b) …the court is concerned to ensure an assertion of religious belief is made in good faith ‘neither fictitious, nor capricious and that it is not an artifice’…”;

(c) …emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of other professing the same religion…”; and that 

(d) …the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

It can thereby be seen that the third factor for accessing whether a religious belief is genuine expressly states that the court should not embark on an inquiry and judge such a practice on the metric of some objective standard such as the source of the material upon which the person based their religious belief on. Similarly, Kenyan Court of Appeals while applying the Sarika test in Mohamed Fugicha held:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

Therefore, if the Sarika test is applied to the Hijab case, to prove the whether the belief is genuine in the case a claim of indirect discrimination is brought, the court will only need to look into whether the belief is genuinely held. It need not apply the Essential Religious Practices test.

Reasonable Accommodation and Indirect Discrimination

In NALSA v. Union of India, the Supreme Court recognized that the principle of non-discrimination goes beyond the prevention of discrimination and extends to remedying systemic discrimination that persons may suffer due to their identities. One such remedy is the notion of ‘reasonable accommodation’.  The following is the relevant portion of the judgment:

In international human rights law, equality is found upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.

In Madhu v. Northern Railways, while addressing the aspect of indirect discrimination the Delhi High Court referred to the following excerpt from the judgment in Jeeja Ghosh v. Union of India:

“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.”

It is important to interpret this reference by understanding what the judgment in Jeeja Ghosh addressed. The Supreme Court in Jeeja Ghosh recognised the principle of reasonable accommodation for disabled persons (who were systematically discriminated in this case) in a bid to remedy discrimination that they had faced. It also mentioned that such reasonable accommodation has to be made in the interest of substantive equality.  Therefore, when the Delhi High Court in Madhu referred to this specific excerpt, it in effect recognised that remedying discrimination also includes within it allowing reasonable accommodation to those groups that face systemic discrimination beyond the realm of disability.

Similarly, in Nitisha v. Union of India, the court mentioned, while referring to the judgments in Jeeja Ghosh v. Union of India and Vikas Kumar v. UPSC, that the Supreme Court has recognised reasonable accommodation as a ‘substantive equality facilitator’ while discussing indirect discrimination. Thereby it can be noticed that the courts have acknowledged the need for the principle of reasonable accommodation to be applied to cases involving indirect discrimination for the realisation of substantive equality.

The Supreme Court in Ravinder Kumar Dhariwal v. Union of India held that the initiating disciplinary proceedings against a mentally disabled person (in the said factual background) amounted to indirect discrimination. The judgment referred to the case of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, and recognised that in case prima facie discrimination exists, the burden shifts on the person or entity who discriminates to justify the discrimination and to prove that it did indeed provide for reasonable accommodation. The Supreme Court used this three stage test while discussing indirect discrimination. The relevant extract is as follows:

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU 83, the Canadian Supreme Court held that once it is established that prima facie discrimination exists, the burden shifts on the employer to justify the discrimination, which involves proving that it provided reasonable accommodation. The court developed a three-stage test based on proportionality to determine whether an employer may use the bona fide occupational requirement.

Thereby, the burden in the present case, will fall on the relevant authorities of the Karnataka government to prove that measures to allow reasonable accommodation were provided for the students who are at the receiving end of the discrimination. It must however be kept in mind that Indian Courts have explicitly recognized the principle of reasonable accommodation, for the most part, in cases relating to disability rights.

Conclusion

The judgments delivered by the Indian courts on indirect discrimination are a testament to transformative constitutionalism, one where the courts have not hesitated to borrow from other jurisdictions in order to ensure that there is not a formalistic interpretation of equality. Even though the Supreme Court of India has commented in certain judgments (such as Nitisha v. Union of India) on how the doctrine of indirect discrimination is at its nascent stages, one can observe that that hasn’t stopped the courts from using the doctrine in those cases or expanding the contours of the doctrine’s application with due regard to the specific nature of each case. Such a commitment to substantive equality, in my opinion, is only strengthened, when the unique nature of the interaction between indirect discrimination and intersectional discrimination is recognized in the Hijab case.

Guest Post: The Hijab Case Through the Lens of Proportionality

[This is a guest post by Shreyas Alevoor.]

---

Previously on this blog, a case was made for the application of the disparate test to challenge the ban on Hijab. However, the indirect discrimination test ought to be applied with caution, and with awareness of the fact that Indian jurisprudence on indirect discrimination is still nascent. In Part I of this piece, I argue that arguments founded on indirect discrimination test may not be entirely effective. In Part II, I argue that the ban on Hijab, being a violation of Art. 19(1)(a) is better off being challenged on grounds of proportionality.

Let us return to the Karnataka government’s directive. The directive states that “clothes which disturb equality, integrity, and public law and order should not be worn”, and cites the Supreme Court’s judgement in Asha Ranjan vs. State as justification for this. The invocation of Asha Ranjan is problematic for several reasons, one of them being that its factual matrix makes it irrelevant to this controversy. But more on that later.

Indirect Discrimination and its Discontents

In the landmark US case of Griggs vs. Duke Power Company, disparate impact was said to occur when a policy, which is neutral at the face of it:

1. Puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group, and
2. Fails to satisfy a means-end justification test.

The two-factor test for indirect discrimination that the Canadian Supreme Court developed in Fraser vs. Canada, also recognized by the Indian Supreme Court, is as follows:

1. Whether the impugned rule disproportionately affects a particular group;
2. Whether the law has the effect of reinforcing, perpetuating, and exacerbating a disadvantage (social, political, and economic exclusion, psychological and physical harms).  

I submit that, under this test, the government order [“G.O.”] does not have the effect of indirectly discriminating against a particular group. The first prong of both the Griggs and Fraser tests requires that the protected group face a disproportionate impact compared to a comparator/cognate group. The evidentiary standard used in the United Kingdom to determine the disproportionality is that of the deliberately vague ‘particular disadvantage’. This is done to ensure that the parties or the courts do not get caught up in an empirical exercise, but rather employ an intuitive assessment of disparate impacts. The Court in Fraser similarly notes that the “disproportionate impact on the members will be apparent and immediate”, and will “show such strong association with the [group’s] traits.”

The State government’s directive requires the school to act against anyone who violates the dress code of the institution – which applies not only to Hijabs, but also any other articles of clothing with religious connotations. The disadvantage suffered is not ‘particular’, but universal. Indeed, Hindu boys wearing saffron scarves were barred from entering the classroom. Hence, the impacts of the measure does not show an association with the protected group’s traits.

Note that indirect discrimination is said to occur to when a measure that appears to uphold equality in treatment results in an inequality of outcomes, due to the systemic nature of discrimination. One can understand this with the example provided in Jones vs. Chief Adjudication Officer: in a large children’s party, the host announces that presents will be divided equally between all the girls and boys. Later, he announces that only the girls shall be given presents, and the boys will have none. After a while, the host discovers that the presents have been misplaced and thus nobody will receive a present. While there is discrimination in the first case, there is none in the second case as “the disadvantage to girls is not mirrored by any corresponding advantage to boys”. 

An Alternative Argument for Indirect Discrimination

How should the Court determine if a ban on Hijab perpetuates a disadvantage under the second prong of the Fraser test? It might have to investigate whether the Hijab is essential to the Muslim community – at which point it may again be drawn into the minefield of the Essential Religious Practice (ERP) test as it currently stands. Notwithstanding the principled arguments against the test, there are also practical difficulties in proving Hijab as an ERP.

Before I conclude this Part, I must recognize that a claim for indirect discrimination could exist, but not in the way previously discussed on this blog. In Fraser, the Court had noted that indirect discrimination not only results from headwinds against protected groups built into facially neutral laws, but could also arise from an “absence of accommodation for members of protected groups”. The refusal to accommodate Hijab may be construed as an absence of accommodation.

One can find a tiny sliver of the accommodation argument in the Delhi High Court’s judgement in Inspector (Mahila) Ravina vs. Union of India. Here, a female CRPF officer was denied promotion because she was unable to attend a pre-promotion course in 2011 due to her being pregnant at the time, even though she did complete it successfully in 2012. S. Ravindra Bhat, J. (as he was then), held that the State could not make her choose between the pregnancy and a promotion. It was held that such a choice, while made under a “seemingly neutral reason of inability of employee” would be discriminatory. Here, the dispute results not from built-in headwinds, but from not making an accommodation for pregnancies. However, the difficulty with the accommodation argument is that the Supreme Court’s nascent indirect discrimination jurisprudence as developed in Navtej Johar and Lt. Co. Nitisha does not explicitly recognize claims of accommodation as yet.

Proportionality Challenge

In a previous blog post, Hari Kartik makes an excellent argument for clothes as symbolic speech. I further argue that the Karnataka government’s directive and its grounds for the ban (equality, integrity, and public law and order) fail on proportionality grounds in so far as it violates Art. 19(1)(a).  

A proportionality test at its simplest consists of the following four prongs: Legitimate Aim, Rational Nexus, Necessity, and Balancing.

Equality as a Justification

It is difficult to understand how religious expression can undermine equality if the right to such expression is available to people of all religions. In any case, ‘equality’ (as cited in the directive) is not a ground for restricting free speech and expression under Art. 19. Neither is it a “legitimate interest of sufficient importance” in this case, for reasons I will explain shortly.

Tests of indirect discrimination also prescribe proportionality. The measure should “correspond to a real need and the means must be appropriate” to achieve the stated objectives, as stated in Bilka Kaufhaus GmbH vs. Weber von Harz. A reasonable accommodation of religious items of clothing does not result in inequality by abolishing uniforms. In this case, the demand is for a Hijab over the uniform. In Navneethum Pillay, the Court rightly pointed out that religious and cultural displays in public “[are not] a parade of horribles, but a pageant of diversity”.

Integrity and Public Law and Order

Whatever the possible arguments for a short-term prohibition in light of a sensitive situation, it is difficult to justify the ban as a long-term measure as it prohibits potentially every form of religious expression. There exists no rational nexus between such a ban and protecting law and order. The ban is not only limited to the Hijab, but also other articles of clothing of religious significance. In MRF Ltd. vs. Inspector Kerala Government, the Court held in the context of reasonableness that that the restriction imposed by a measure should not be “arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.” There exist better alternatives to an outright ban – that of making accommodations on a case-by-case basis after careful scrutiny.

The final Balancing prong, as Mark Tushnet notes, requires a determination of “whether the government’s goals are important enough and are advanced enough by the statute so as to justify the actual impairment of liberty”. The ‘equality’ objective of the directive fails here as it is not important enough. While ‘integrity and law and order’ is an important objective, a ban does not fulfill it.

The directive by invoking Asha Ranjan also tries to fulfill the Balancing requirement (albeit unintentionally) but doesn’t really succeed at it:

Larger public interest prevails upon the individual interest not by negating individual rights but by upholding larger interests and to ensure relationship between the institution and the students.

Let us compare the following formulations:

Proportionality: Government’s goals and measures taken should be important enough to justify the impairment of liberty.

Directive: Larger public interest (i.e., government goals of law and order) and measures taken (i.e., the ban) are important to ensure relationship between the institution and the students.

This is the first problem: for reasons explained above, the government goals and the measure taken do not justify the impairment of liberty, but only justify a “relationship between the institution and students”. What this relationship is, no one really knows. 

The other problem is that this attempt at a balancing act draws a false dichotomy between a larger State interest (education, and public order) on the one hand, and individual rights (freedom of speech and expression, and freedom of faith and conscience) on the other. It claims that it does not wish to “negate individual rights”, but that is precisely the effect of the ban – a veritable Tacitus’ desert.  In Serif vs. Greece, the European Court of Human Rights held that the role of the State is to “not remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. This was relied upon in Sarika Watkins-Singh vs. Aberdare Girls’ High School to hold that schools had a ‘very important obligation’ to ensure that its students are tolerant as to the beliefs of other people, and respect other people’s religious wishes.

For these reasons, the G.O. – and the hijab fan – fail the test of proportionality.

Notes from a Foreign Field: Developing Indirect Discrimination – Bringing Fraser to India [Guest Post]

[This is a guest post by Gauri Pillai.]

---

Article 15(1) prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’. The Supreme Court, in the now infamous Nergesh Meerza, read Article 15(1) to mean that discrimination should not be made ‘only and only on the ground of sex’ but could be made ‘on the ground of sex coupled with other considerations.’ On the one hand, the ‘on ground only of…sex’ test functions to bring in a requirement of intention to discriminate. The presence of a reason for discrimination—say, to protect women—operates as an ‘other consideration’, bringing the rule outside the scope of the non-discrimination guarantee, even if the effect of the rule is to disadvantage women (see here). Discrimination in thus understood to mean intentional, individual acts of prejudice tied to the ‘moral blameworthiness’ of actors. There is no recognition that ‘such prejudices are frequently embedded in the structure of society’, the ‘unquestioned norms, habits, and symbols in the assumptions underlying institutional rules and the collective consequences of following those rules’: in other words the ‘everyday practices of a well-intentioned society’, beyond the conscious coercive actions of a ‘tyrannical power’ alone.  On the other hand, the ‘on ground only of…sex’ test excludes indirect discrimination. Facially neutral rules having an adverse effect on members of a specific group would amount to ‘other considerations’ beyond the listed ground, thus placing such rules outside the reach of Article 15(1) (see here).

However, the Supreme Court trilogy in Sabarimala, Joseph Shine and Navtej Johar offers an alternate reading of the non-discrimination guarantee. First, the scope of Article 15(1) was extended to ‘institutional and systemic discrimination against disadvantaged groups’, thereby tackling ‘structures of oppression and domination’ excluding members of these groups from full and equal social, economic, political and cultural participation (Chandrachud J., concurring opinion, Sabarimala, paragraph 117 and Joseph Shine, paragraph 38). Thus, there was a shift towards understanding discrimination in a structural sense. Second, the central enquiry under Article 15(1) was no longer the intention of the discriminator. Rather, the ‘primary enquiry to be undertaken by the Court’ was whether a rule, in form or effect, ‘contributes to the subordination of a disadvantaged group of individuals’ (Chandrachud J., concurring opinion, Joseph Shine, paragraph 38). Finally, the ‘on ground only of…sex’ test was dismissed as a ‘formalistic interpretation’ of Article 15(1), because it failed to recognise the ‘true operation’ of discrimination (Chandrachud J., concurring opinion, Navtej Johar, paragraph 36). Instead of relying on the formal basis of classification—the listed ground ‘plus’ the facially neutral criterion—Article 15(1) was reoriented to focus on the effect a facially neutral rule. In other words, indirect discrimination was recognised, and brought within the scope of the non-discrimination guarantee.

Despite the steps forward, several questions still remain unanswered. How does the recognition of discrimination as a structural phenomenon affect the doctrinal functioning of the non-discrimination guarantee? What is the test for indirect discrimination? How should courts assess the impact of a rule? What forms of impact are relevant? What kind of evidence is suitable and necessary for such impact assessment? Answers to these questions are crucial to enable Courts to apply these concepts going forward. In their absence, these ideas could remain at the level of rhetoric, without translation into doctrine. In this post, I present the recent decision by the Supreme Court of Canada in Fraser v Canada—interpreting the non-discrimination guarantee under Section 15 of the Canadian Charter—as offering clear responses to these questions, and thus providing normative and doctrinal guidance for India. However, before I get into discussing the case, it is important to interrogate briefly why a decision from Canada is relevant for constitutional jurisprudence in India: why should India listen to Canada?

Canada offers a helpful comparative because the constitutional function of the non-discrimination guarantees in the Canadian Charter and the Indian Constitution bear significant similarities. As the Court recognises in Fraser, ‘the root of s. 15  is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed’ (paragraph 77). An identical commitment underlies Article 15, the object of which has been identified as guaranteeing protection to ‘those citizens who had suffered historical disadvantage’ by removing their ‘age-long disabilities and sufferings’. This is reinforced by the placement of Article 15 within the ‘equality code’, consisting of Article 16, which permits the State to treat members of disadvantaged groups differently through reservations, offering them ‘real and effective’ equal opportunity for employment; Article 17, which abolishes untouchability to free Dalits from ‘perpetual subjugation and despair’, ‘social inequity, social stigma and social disabilities’; and Article 18 which prohibits an Indian citizen from accepting titles in order to dismantle social hierarchy, or the perceived superiority of some over the other.

Having set out the similarities in the constitutional vision underlying the non-discrimination guarantees in India and Canada, I now turn to Fraser. In 1997, the Royal Canadian Mounted Police (‘RCMP’) introduced a job-sharing program to provide its members an alternative to taking leave without pay. Under the program, two or three RCMP members could split the duties and responsibilities of one full-time position, allowing each participant to work fewer hours than a full‑time employee. The petitioners, three female employees of the RCMP, enrolled in the job‑sharing program along with 137 other members. Most participants were women, and they cited unilateral responsibilities for childcare as their reason for joining the program. Ms. Fraser described feeling ‘overwhelmed’ as she tried to balance work and family; Ms. Pilgrim felt like she was ‘on a treadmill’; and Ms. Fox recounted the experience as ‘hell on earth’ (paragraph 7). The RCMP introduced a rule deeming the job-sharing position part-time work for which participants could not receive full-time pension credit. This policy was challenged by the petitioners as having a disproportionate, adverse impact on women, thus violating their right to non-discrimination under Section 15.

The Court began by identifying the shift away from a ‘fault-based’ conception of discrimination towards an ‘effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups’. The shift, the Court observed, was premised on the recognition that discrimination is ‘frequently a product of continuing to do things the way they have always been done’ rather than an intentional, prejudicial act by an individual actor (paragraph 31). In other words, the Court identified discrimination as structural, in general. The Court then set out how parenting is structured socially in Canada. Citing evidence, the Court observed that the public sphere, including the workspace, continues to be built on the male norm, and requires an ‘unencumbered worker’ with no responsibilities of care. At the same time, the private sphere, including the home, continues to be built on the labour of women who unilaterally undertake a major share of parental responsibilities (paragraph 104). In other words, the gendered division of labour, a product of inequality between the sexes, is systemically built into the ‘everyday practices’ of Canadian society. While this recognition is significant in and of itself, how did it influence the claim under the non-discrimination guarantee?

The lower courts rejected the discrimination claim holding that while most employees who lost out on pension benefits due to job-sharing were women, the loss occurred due to the ‘choice’ of the petitioners to job-share. The Supreme Court in Fraser however used the understanding of discrimination as structural—in general and in the specific context of parenting—to contest this notion of ‘choice’. The Court observed that choice should not be assessed as against an ‘autonomous, self-interested and self-determined individual’. Rather, a ‘contextual account of choice’, taking into account the ‘social and economic environments’ in which choices play out is necessary. The Court then applied this contextual understanding of ‘choice’ to women’s decision to job-share. The Court argued that the decision to job-share is far from an ‘unencumbered choice’. Against the structurally unequal institution of parenting, the only available option for women—‘euphemistically labelled choice’—is to opt for forms of accommodation like job-sharing, which are associated with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. If so, penalising them for this ‘choice’ by denying them pension benefits both punishes them for inequality, and perpetuates such inequality by exacerbating women’s socio-economic disadvantage, and entrenching stereotypes about women as ‘bad employees’ who ‘do not merit or want more responsible, higher‑paying jobs because they will inevitably prioritize family over work’. Thus, the Court highlighted the ‘flaws of over-emphasising choice’ in the Section 15 enquiry: ‘by invoking the “choice” to job‑share as a basis for rejecting the s. 15(1)  claim, the [lower courts] removed the “challenged inequality from scrutiny, effectively taking it off the radar screen so as to circumvent examination of the equality issues at stake”’ (paragraphs 88-92).

This does not imply that in the absence of inequality, women would never opt to job share and spend time with their children. The Court in fact recognised this by holding that ‘differential treatment can be discriminatory even if it is based on choices made by the affected individual or group’. This is because discriminating on ground of certain choices—like the decision to parent—violates human dignity and is thus inherently discriminatory, independent of inequality (paragraphs 86-86). Thus, the decision to parent was implicitly recognised as valuable by the Court, and job-sharing was seen as facilitating the decision by removing the disadvantage associated with it in the employment sphere. However, the Court did not develop this line of reasoning, as it mapped onto a claim of discrimination on ground of parental status which did not need to be pursued in light of the gender discrimination claim (paragraph 114).   

In assessing ‘choice’ in light of the structurally unequal institution of parenting, the Court also recognised the reason why it was women who primarily made the ‘choice’ to job-share:

[a] number of structural conditions push people towards their choices, with the result that certain choices may be made more often by people with particular “personal characteristics”. This is a key feature of systemic inequality—it develops not out of direct statutory discrimination, but rather out of the operation of institutions which may seem neutral at first glance (paragraph 90).

This then brought the Court to the issue on indirect discrimination. It also normatively grounded the recognition of indirect discrimination as a necessary response to the interaction between seemingly neutral rules and prevalent structural inequality. Indirect discrimination, the Court held, occurs when ‘a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground…Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage’ (paragraph 30). The Court then set out a two-stage doctrinal test for assessing indirect discrimination.

At the first stage, the Court would enquire whether a rule, in effect, creates a distinction on the basis of a protected ground by having a ‘disproportionate impact’ on members of a group within the ground. The Court discussed the nature of evidence that could be used to prove this claim. On the one hand, evidence providing the ‘full context of the claimant group’s situation’ would be useful to demonstrate that ‘membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group’. However, the Court was careful to note that evidence on issues which predominantly affect certain groups may be under‑documented. As a result, claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony. On the other hand, evidence—including statistical evidence—about the outcome of the rule, or a substantially similar one, in practice could offer ‘concrete proof that members of protected groups are being disproportionately impacted’. The Court clarified that there is no universal threshold on what level of statistical disparity is necessary to demonstrate that there is a ‘disproportionate impact’. Declining to craft rigid rules, the Court held that it would vary depending on the case. The Court also noted that both kinds of evidence are not always required: ‘in some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’ (paragraphs 50-72).

Once the petitioner establishes that the rule, in effect, creates a distinction on the basis of the protected ground, the second stage of the enquiry starts. At this stage, the Court asks whether:

the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage…The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (paragraph 76).

Thus, a focus on impact or effect of the rule is built into both stages of the test: first to determine whether the rule draws a distinction on the basis of a protected ground, and second to assess whether the distinction perpetuates disadvantage and is thus discriminatory. Applying the test to the case at hand, the Court held that the rule denying full pension benefits to job-shares, though facially neutral, had a ‘disproportionate impact’ on women. The Court relied on statistics—from 2010‑2014, all RCMP members availing job-share were women, and most of them cited childcare as their reason for doing so—and other evidence—commission reports, academic work and judicial decisions—’about the disadvantages women face as a group in balancing professional and domestic work… because of their largely singular responsibility for domestic work.’ This evidence, the Court held, established the ‘clear association between gender and fewer or less stable working hours’, and proved that the rule drew a distinction in effect between men and women, satisfying the first stage (paragraphs 97-106). Coming to the second stage, the Court held that the denial of pension benefits to women exacerbates women’s historical disadvantage. It impacts them socio-economically, with evidence suggesting that the feminisation of poverty is linked to the disparities in pension policies. At the same time, it also entrenches ‘a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male’. In other words, it retains the ‘male pattern of employment’, continuing to construct the public sphere around the male norm. In light of these ‘far‑reaching normative, political and tangible economic implications’ of the rule, it was held to perpetuate women’s disadvantage, and thus discriminate against women (paragraphs 107-113).

Thus Fraser demonstrates, with great clarity, how understanding discrimination as a structural phenomenon translates into the functioning of non-discrimination guarantee. It allows the Court to resist the rhetoric of ‘choice’ which can be used to subvert claims of discrimination. It also offers a compelling normative grounding for the recognition of indirect discrimination. Fraser further lays out a cogent two-stage test for establishing indirect discrimination, indicates the forms of impact that are relevant and describes the nature of evidence which can be used to prove such impact. It therefore provides clear normative and doctrinal guidance to India in developing the constitutional jurisprudence on indirect discrimination.

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

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

---

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

---

[This is a guest post by Ashwin Vardarajan.]

---

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

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

E-66 and ‘standards of education’

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

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

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

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

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

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

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

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

Fundamental Rights and Fundamental Omissions

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

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

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

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

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

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

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

---

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

A brief recap is in order.

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

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

There are two reasons why it should not:

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

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

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

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

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

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

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

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

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

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

Why does this matter?

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

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

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

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

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

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

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

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

Notes from a Foreign Field: The Dutch Court on Privacy, Surveillance, and Welfare Fraud

In an interesting judgment (in Dutch; use Google Translate) delivered by the Hague District Court earlier this week, the Dutch government’s Risk Indication System [“SyRI”] was found to violate the European Convention on Human Rights (read summary). SyRI was an algorithmic system designed to “prevent and combat fraud in the field of social security and income-related schemes, tax and social insurance contributions and labor laws.” It involved using data held by various government departments, and linking it in order to generate a “risk report.” The data then collected would be processed against certain “risk indicators”, and according to a “risk model”, in order to produce the “risk report”. And the “risk report”, in turn, would flag a person as potentially involved in possible fraud (in relation to access to welfare benefits, tax payment etc.), and a possible subject of further investigation. That data that could be processed included information about work, taxes, property ownership, trade, demographic details, and multiple other categories. Therefore:

Collection of Data from Different Government Departments —-> Encryption and Pseudonymising of Data —-> Processing of Data against Risk Indicators and through the Risk Model (First Phase) —> Decryption and De-Anonymising of Data that is Flagged as an “Increased Risk” —-> Further Analysis —–> Preparation of Risk Report —-> Potential further action on the basis of the Risk Report.

The enabling legislation that authorised SyRI was challenged by a group of petitioners and privacy organisations, on the now-familiar grounds of privacy and discrimination. The State defended it on the – also familiar – ground that it was of overriding importance to identify fraudulent claimants, so that the welfare system could continue functioning.

The Framework

As we have seen on multiple occasions by now, the outcomes of such cases – involving dense factual disputes – often hinges upon the initial analytical framework set out by the Court. In this case, the Court began by setting out two important principles. First, it noted that the “development of new technologies also means that the right to the protection of personal data is increasingly important.” An implicit rebuke to the “move fast and break things” school of technological utopianism, the Court emphasised that the greater the scope for technology-enabled intrusion into private life, the greater the importance that must be given to issues of privacy and data protection. Secondly, the Court set out in advance that whatever the stated benefits of SyRI in combating welfare (and other kinds of) fraud, its deployment would have to comply with the data protection standards of transparency, purpose limitation, and data minimisation (see paras 6.31 – 6.33) in a “clear and verifiable way.” This put the burden firmly upon the State in establishing compliance with these fundamental principles, an ensuring, in turn – as we shall see – that unresolved factual disputes would mean a verdict in favour of the citizen and against the State, rather than the other way round.

The Analysis 

The Court began by noting that:

…the State has not made the risk model and the indicators that make up or may consist of the risk model public. In these proceedings, too, [it] did not provide objectively verifiable information to the court in order to enable it to test the views of the State on what SyRI is. The reason given by the State for this is that citizens could adjust their behavior accordingly. This is a conscious choice by the State. (paragraph 6.49)

In this context, the Court noted that the SyRI process involved the use of large data sets (from different sources), their inter-linking, and the potential use of data mining and predictive analysis. The linking of data made it a clear case of profiling (indeed, both parties were in agreement on this). The Court therefore held that while no civil or legal consequence immediately flowed from the preparation of a risk report, it did nonetheless “have a significant effect on the private life of the person on who the report relates to.” Article 8 of the ECHR (the right to privacy) was therefore attracted.

In sum, therefore, SyRI involved profiling individuals on bases that were “secret”, in a manner that impacted their right to privacy, and whose results were not communicated to them. The question then was whether this interference with the right to privacy could be justified as being “necessary in a democratic society.”

During the course of this – essentially – proportionality analysis, the Court accepted the government’s contentions that tackling welfare fraud was both a legitimate State purpose, and a pressing social need. However, it went on to find that SyRI violated all three prongs – transparency, purpose limitation, and data minimisation – of the data protection principles. On the first prong, the Court observed that the “legislation in no way provides information about the factual data that can justify the presence of a particular circumstance, or which objective factual data can justifiably lead to the conclusion that there is an increased risk.” In other words, both the indicators and the risk model – as observed above – were secret. Thus, the Court held:

…it is impossible to check how the simple decision tree that the State is talking about comes about and what steps it consists of. It is thus difficult to see how a person concerned can defend himself against the fact that a risk report has been made with regard to him or her. It is equally difficult to see how a data subject whose data have been processed in SyRI, but who have not led to a risk report, can be aware that his or her data has been processed on the right grounds. (paragraph 6.92)

This, the Court found, was a clear breach of the principle of transparency. The Court did not – as certain other Courts might have done – ask for the indicators and the risk model in a “sealed cover”, so that it could consider their validity for itself. Rather, it straightforwardly held that consequential State decisions involving a violation of the right to privacy could not be made in a non-transparent fashion.

The Court also went on to note that transparency was crucial because of “the risk that (unintended) discriminatory effects will occur.” In fact, relying upon a report submitted by the UN Special Rapporteur for Extreme Poverty, the Court noted that “areas that are already known as problem neighborhoods are being investigated further. As a result, the chance that irregularities are found is higher than in other neighborhoods, which in turn confirms the image of a problem neighborhood, encourages stereotyping and a negative image of the residents who live in the neighborhood is reinforced, even though there is no question of them. risk reporting” (paragraph 6.92). This, of course, is a standard issue with all such algorithmic procedures: recall that it has repeatedly been found, for example, that the use of DNA databanks in crimefighting has a discriminatory effect, as the the composition of the databank is already likely to overrepresent marginlised populations (the known example is that of black people in the USA) – thus leading to a greater chance of false positive, false negatives, and wrongful convictions of members of those populations.

Crucially, in light of this, the Court found that “it is not possible to assess whether this risk [i.e., of discrimination] has been adequately addressed, in the absence of verifiable insight into the risk indicators and the (operation of) the risk model, including the method of analysis by the Inspectorate SZW” (paragraph 6.94). This is a crucial point, that takes us back to the issue of framing. Here – as in other similar cases, such as the litigation around Aadhaar in India and the Huduma Namba in Kenya, the Court had to deal with an information gap on a crucial issue (in this case, the non-disclosure of the indicators and the risk model). Now, there are two ways a Court can respond to this: first, to say that as these are issues of technological design, they are not fit for judicial review, and that therefore, in the absence of adequate information, they will presumptively be decided in favour of the State, in accordance with the principle of judicial deference. The second way, however – and this is how the Dutch Court responded – is to say that given that crucial rights are involved, and given the well-known potential of exclusion and discrimination that comes with such algorithmic systems, the onus lies upon the State to affirmatively demonstrate that there is no violation of rights. This is the role played by the data protection principles of “transparency and verifiability”, and this is how the Court was able to conclude that:

without insight into the risk indicators and the risk model, or at least without further legal safeguards that compensate for this lack of insight, provides insufficient guidance for the conclusion that with the use of SyRI the interference in private life in the light of the abuse and the fraud that is intended to combat is always proportional and therefore necessary. (paragraph 6.95)

The Court then went on to hold that the principles of data minimisation and purpose limitation had also not been complied with. This was because there was no provision for a “pre-test” to determine “whether the interference in private life due to all files linked to that project is necessary, proportionate and subsidiary in view of the specific objective of that project.” (paragraph 6.99)

Conclusion

Questions involving the interface of technology and fundamental rights will – as discussed above – necessarily take Courts into the technical domains. In such situations, the easy thing for the State to do is to engage in information asymmetry, withhold key factual details, and claim that the Court is neither competent, nor authorised, to get into question of technological design. Giving in to these arguments by invoking judicial deference is an easy answer for the Court as well.

The easy route, however, is not the correct one. This is because when you are dealing with technology and fundamental rights, issues of design are crucial: the manner in which a technological system will affect fundamental rights is dependent upon how it is designed (is the data collection centralised? Federated? Can information silos be linked? etc.) Therefore, adjudicating upon issues of design is unavoidable: even when the Court is refusing to engage with those questions, its very non-engagement is an active decision that then grants to the State a kind of impunity to violate fundamental rights by not being constrained in the design of the systems that it deploys.

In that context, the judgment of the Hague Court is crucial, because it squarely takes the bull by the horns, and categorically holds that the absence of information is a reason to hold against the State. This, as we have seen, is possible only with a certain kind of framing: a framing that neither takes technological utopianism at face value, and nor does it take the role of technology in the State’s pursuit of “social goals” such as fraud prevention as an unmitigated good. Rather, it is a framing that takes seriously the potential of technology to violate rights – both privacy and equality – and insists that it is the role of the State to ensure that those concerns are adequately addressed before it can proceed with its project of harnessing technology into the service of its goals. This, I would submit, is far truer to the judicial role of safeguarding fundamental rights.

 

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 Johar. Rajbala, 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.)

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

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

Legal Interpretation in the Shadow of the Constitution

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

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

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

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

And:

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

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

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

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

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

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

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

Indirect Discrimination

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

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

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

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

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

The Supreme Court’s Muslim Beard Judgment: A Missed Opportunity

Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:

“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.

Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.

However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.

Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.

It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:

“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”

This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).

Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.

Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:

“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).