Category Archives: Privacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Guest Post: Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are

(This is a guest post by Tarunabh Khaitan, who is an Associate Professor of Law at the Universities of Oxford and Melbourne.)

The guarantee of non-discrimination under Article 15 of the Constitution is not an essential weapon to fight the criminalisation of victimless consensual sexual acts between adults under section 377 of the Indian Penal Code. The ridiculousness of such criminalisation is so patent that even a deferential quest for reasonableness under Article 14 of the Constitution will find the criminal provision wanting. Nor is the provision likely to pass muster with the guarantee of personal liberty and privacy under Article 21. Indeed, there is even a view that no constitutional provision needs to be invoked—that s. 377 can be defanged through a mere statutory reinterpretation in light of changes social facts.

Judicial minimalism (and, the related notion of constitutional avoidance)—the idea that if a case can be decided on narrower grounds, courts should avoid bringing the big guns out—is usually wise counsel. The case before the Supreme Court, however, is unusual. This is an instance where the Court has a constitutional obligation to unrelentingly apply the full moral force of the antidiscrimination principle embedded in Article 15 against s 377, in addition to the arguments mentioned above. There are at least two reasons why judicial minimalism will be unwarranted in this case.

The first reason is institutional. The Court needs to atone for its own institutional sin in recriminalising homosexual conduct by overruling the constitutionally sound judgment of the Delhi High Court. This is an opportunity for the Court to apologise to the Constitution, for its abject failure to defend its values. The Court also owes an apology to millions of innocent Indians who it rebranded as criminals in 2013. It much acknowledge, loudly and clearly, the violence its judgment visited on so many lives. It needs to recognise that it acted as an organ of a colonial state when it criminalised people based simply on who the were, and mocked their quest for justice as a claim for ‘so-called rights’. The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.

The second reason for an expansive reasoning is provided by the current political context. In most cases, the primary judicial objective is to reach a just outcome under law. But some cases come to acquire an expressive significance far beyond the remedy the court orders. The litigation over s 377 has shaped our political discourse over the last two decades in ways that would have been unimaginable for activists who first challenged the provision at the start of the century. Within fifteen years, the country moved from not talking publicly about homosexuality to a general election where major political parties promised decriminalisation in their election manifestos. What the Court says in this judgment is going to matter as much as what it does through its order.

But the expressive salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy today is at a crossroads. Its constitutional commitment to an inclusive, composite, secular ethos has never been challenged more seriously than it is today. At a time when sectarianism and majoritarian nationalism are seeking to exclude all sorts of minorities from public life and equal citizenship, the Court has a duty to emphasise the inclusive and pluralist rather than majoritarian character of our democracy. Inclusiveness and pluralism lie at the heart of Article 15, which can be the surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.

A robust development of the Article 15 jurisprudence, along the path showed by the Delhi High Court in 2008, is more urgent than ever. The Court owes a promise to Rohith Vemula that the judiciary would rigorously examine exclusionary and discriminatory practices. It has a duty to all those who have been lynched, harassed or persecuted for being different that Article 15’s promise of defending their personal autonomy and dignity is not empty rhetoric. It is true that the Court alone cannot deal with rampant discrimination. But its strong endorsement of the antidiscrimination principle could provide a boost for political efforts to enact a comprehensive antidiscrimination law, at least in some states to begin with.

It is true that judicial minimalism and constitutional avoidance are not typical features of the jurisprudence of the Indian Supreme Court. The Court has often been jurisprudentially expansive, while being remedially minimalist. But, in politically sensitive cases, it has found judicial minimalism to be strategically useful (its judgment in the triple talaq case, eschewing all mention of Article 15, is a case in point). Such strategic minimalism can often be important for preserving a court’s legitimacy. In the 377 case, however, it is not just judicial legitimacy that is at stake, but the very nature of our constitutional identity.

In his excellent book on constitutional identity, Gary Jacobsohn identifies the phenomenon of disharmony in constitutional identity (p 87): “Sometimes [disharmony] exists in the form of contradictions and imbalances internal to the constitution itself, and sometimes in the lack of agreement evident in the sharp continuities that frame the constitution’s relationship to the surrounding society.” An inclusive pluralism has, largely, been the dominant narrative in India’s constitutional identity. But seeds of disharmony have always existed—internally, in the form of the cow slaughter directive of the Constitution, and externally in the deeply inegalitarian and sectarian social structure the Constitution has tried to transform. As Jacobsohn argues, constitutional disharmony carries within it the seeds of constitutional change.

Make no mistake: the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.

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

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

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

Article 14 and Genetic Discrimination

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

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

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

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

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

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

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

Uncertainties over Horizontality

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

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

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

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

Legal Interpretation in the Shadow of the Constitution

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

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

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

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

And:

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

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

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

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

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

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

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

Indirect Discrimination

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

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

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

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

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

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Filed under Ambedkar, Article 12: Meaning of "State", Article 15 (general), Article 21 and the Right to Life, Bodily Integrity, Disparate Impact, Equal Pay for Equal Work, Equality, Horizontal Rights, Labour Law and the Constitution, Meaning of "State", Non-discrimination, Privacy, Regularisation, Reservations/Affirmative Action, Right to Health, Sex Discrimination, Sex Equality

Freedom of Speech: A Round-Up of Recent Judicial Pronouncements

(Editor’s Note: Over the last few months, I have been unable to write here as frequently as I would have liked to. Over the course of this month, I will try to post a series of round-up pieces summarising some broad developments since January ’18. The first of these posts is about the freedom of speech.)

The Supreme Court’s right to privacy judgment was meant to be about expanding the individual rights against State (and private) power. However, as the last few years have shown, our Courts are experts at turning shields that are meant to guard rights into swords to cut them down. An excellent example of this is the Madras High Court’s judgment in Thiru P. Varadarajan v Kanimozhi, which imposed a gag order upon a Tamil magazine with respect to articles about the “private life” of Kanimozhi. The High Court was hearing an application to vacate an injunction against a magazine that had been granted four years ago. In refusing to vacate the injunction, the Court relied upon the right to privacy judgment – citing copiously from it; the core of its reasoning was this:

“The concluding remarks of Hon’ble Mr. Justice Sanjay Kishan Kaul [in the privacy judgment] are as follows:

‘Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.’

Therefore, the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right to privacy.”

This is a standard of legal “reasoning” that would get you a failing grade in Legal Methods 101. The High Court cites the closing line of the concurring opinion of one judge out of nine – a line that is self-evidently pure rhetoric, and uses that to invent a mythical “new order” in which privacy has been given “pre-eminence” (over the freedom of speech). The High Court seems to be unaware of the operative part of the privacy judgment, which affirms all the cases that have elaborated upon the scope of the right to privacy after Gobind, including cases where the balance between privacy and free speech was discussed (such as R. R. Rajagopal). The question of whether the balance is to be struck by granting (everlasting) injunctions has been a fraught one, and there is at least one detailed and well-reasoned High Court judgment (Khushwant Singh) that holds that the correct remedy is not to gag speech, but to provide for damages in case privacy is breached.

There is, therefore, no warrant for the High Court’s free-floating conclusion that “the theory that there cannot be a prior restraint or a gag order upon the press or Media stands diluted… after Puttaswamy’s Case.” Puttaswamy has absolutely nothing to say about prior restraint or gag orders. Puttaswamy was never dealing with the issue of balancing competing rights (in this case privacy and the freedom of speech), and did not change the law in this regard in any manner. Mercifully, the High Court does not, in the end, grant a blanket injunction, but a qualified one (albeit with entirely vague contours, banning any articles about the “private life” of Kanimozhi), along with a blanket right of reply.

Unfortunately, the Madras High Court’s order is not even the worst of the gag orders in recent times. That prize is jointly shared by two Delhi High Court orders: the incoherent, four-page stream-of-consciousness order gagging Cobrapost from reporting its sting on Dainik Bhaskar, and the order restoring the gag upon the publication and sale of Ramdev’s biography; as well as the Gujarat High Court order gagging The Wire from publishing about Jay Shah. Notably, the latter two examples are of High Courts stepping in to restore gag orders after trial courts hearing the cases have vacated them.

These “interim” orders, which have the luxury of being virtually unreasoned because they are granted before any kind of substantive hearing, effectively kill the speech in question, given how long legal proceedings take in India. They are effectively decisions on the merits without any kind of examination of merits, and they choke off the marketplace of ideas at the very source. In developing a philosophy of “gag first, ask questions later“, the High Courts seem to be blissfully oblivious of the fact that what is at stake is a foundational fundamental right (Article 19(1)(a)); this is not some civil suit where you direct “status quo” pending final resolution. The more that “gag first, ask questions later” becomes standard judicial practice, the more Article 19(1)(a) will be reduced to a dead letter – and the doing of the deed will not be by the executive, but by the judiciary.

Unfortunately, the Supreme Court has tended to be as careless with words as the gagging High Courts. A recent example of this is Bimal Gurung v Union of IndiaThe case was about transferring FIRs to an independent investigation agency. While the FIRs were, in part, based on violent demonstrations, there was no need for the Court to go into the constitutional status of demonstrations in the first place. However, it chose to do so, and then came up with this:

“Demonstrations are also a mode of expression of the rights guaranteed underArticle 19(1)(a). Demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).”

The Constitution is a carefully-drafted document. The framers agonised over the fundamental rights chapter, and in particular, there were long and stormy debates about the restrictions that were being placed upon fundamental rights. Every word that finally made it into the Constitution was debated extensively, and there were many words that were proposed and dropped. This is why Article 19(2) has eight very specific sub-clauses that list out the restrictions on speech. They include “public order”, “the sovereignty and integrity of India”, and “incitement to an offence” (among others). They do not include “nuisance”, “disturbance”, or “private mischief.” Apart from the fact that these are very vague terms that a judge can apply in a boundlessly manipulable fashion to shut down speech that he doesn’t like (recall that similarly vague provisions were struck down as unconstitutional in Shreya Singhal), there is an excellent constitutional reason why “nuisance” and “disturbance” are not part of 19(2). That is because if only acceptable speech was legally permitted, you would never need to have a fundamental right guaranteeing it. It’s only speech that is, in some ways, a nuisance or a disturbance, which a government (or powerful private parties) would like to curtail. This is especially true for demonstrations: the whole point of a demonstration is to put your point across by causing a degree of nuisance and disturbance (short of violence or incitement to offences). What that degree is, is a matter of judicial determination, by applying a reasonable time-place-manner test.

It may be argued that we should not make much of these stray observations, made in a case that was about an entirely different issue (a transfer of FIRs). However, that misses the point: words matter, and they matter especially when the Supreme Court is the author. The normalisation of “disturbance” and “nuisance” as invented restrictions on free speech can have a creeping effect on the scope of 19(2), especially given how stray Supreme Court paragraphs are regularly cited before lower Courts, and regularly applied by judges. In that context, there is an even greater obligation upon the Supreme Court to be careful with words.

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Guest Post: The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some Privacy Concerns

(This is a guest post by Vasudev Devadasan.)

Last month in Chirag Singhvi v State of Rajasthan the Rajasthan High Court was faced with an increasingly common set of facts. Chirag Singhvi filed a habeas corpus petition arguing that his sister Payal Singhvi had been kidnapped, forcibly converted to Islam, and compelled to marry a Muslim man. The claims regarding the kidnapping were rendered questionable when Payal Singhvi appeared in court on her own volition and it came to light that she had filed a complaint of her own. She claimed to have both converted to Islam and married on her own free will and was being harassed by her brother and father. Nonetheless, the High Court noted that she was born and raised a Jain and thus decided to examine whether an individual must complete a specific procedure before they can convert from one religion to another.

What sets the Chirag Singhvi case apart from the dozen other cases with analogous facts is that the Court took it upon itself to frame certain guidelines regulating how and when a person can convert from one religion to another. While the guidelines re-affirm the right of individuals to change religion, they also impose certain troubling conditions regarding notice and publication. Specifically:

  • The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.
  • The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.
  • The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

By requiring individuals to provide public notice of religious conversion the Court’s guidelines raise troubling questions about the right to privacy, the freedom of association, and ultimately the freedom of conscience and propagation of religion. In this post I examine how anonymity is a crucial element in exercising the freedom of association, including religious association, and the potential harms of requiring the disclosure of religious conversions.

Some Context

Before proceeding further, it would be wise to quickly recap the context in which the Chirag Singhvi decision came out. In 2006 the Rajasthan Assembly passed the Rajasthan Dharma Swatantrya Act which made religious conversions made on the basis of “allurement” or “inducement” an offence. The Act did not get the assent of the Rajasthan Governor, who reserved it for the President’s assent. The Advocate General raised some concerns and finally the matter was passed on to the Home Department. The law has still not received the President’s assent. Rather than let the checks and balances of the constitutional scheme operate, the High Court noted that the State Government was “very serious to frame certain rules to govern conversion” and thus thought it more expedient for the High Court to frame guidelines itself. The High Court did not examine why the Act might not have received the Governor or the President’s assent, nor did it even seem concerned that it had not. It merely noted tha the guidelines would be in force until the Act did come into force. What happens if the Act or other regulations do not receive the President’s assent is one left unanswered by the High Court.

The question of religious conversion also has some context. In Stanislaus v State of Madhya Pradesh, the Supreme Court upheld Madhya Pradesh and Orissa’s legislations which criminalised ‘forcible religious conversion’. The Court said that although Article 25 protects the rights of people to “propagate” their religion, it does not allow an individual to convert somebody else to his or her religion. In the Courts own words, “if a person purposely undertakes the conversion of another person to his religion, […] this would impinge on the “freedom of conscience” guaranteed to all the citizens of the country.” This understanding seems to misconceive the reason why religious ideas are disseminated. They are not disseminated, or ‘propagated’ to increase social awareness of a religion, but to engender in individuals the moral conviction that results in conversion. Article 25 thus protects the right to “propagate” religion by individual A, and also protects the “freedom of conscience” of individual B to choose any of the religions being propagated. Thus, disseminating one’s religious ideas to convert others is not an interference with their religious freedom, but rather gives meaning to their “freedom of conscience”.

Coming to the Rajasthan High Court’s guidelines, they go further than the legislations in Madhya Pradesh and Orissa did. The legislations of those two states required the person conducting the conversion ceremony to notify the relevant authority in the event they thought the conversion was coerced. However, the guidelines in Rajasthan require the individual converting to himself/herself give notice of conversion, and by displaying it in public, allowing anyone to object to the conversion.

The right to anonymous association

By requiring that individuals disclose when and which religion they intend to convert to, the guidelines place a restraint on the individual’s freedom of association (included here is their religious association), and thus on their freedom of religion. For example, if an individual intends to convert to a religion whose members have been the victims of persecution, requiring the individual to publicly acknowledge their intention to convert may dissuade him or her from converting because of the risk of persecution. However, if you allow them to convert privately, they may happily do so. We would all balk at the idea of members of a religion being compelled to publicly identify themselves (for example, during the Nazi occupation of Poland, Jews were required to wear white armbands with the Star of David). Requiring individuals who intend to convert provide public notice similarly infringes on this crucial relationship between the “freedom to associate and the privacy of one’s associations”.

The U.S. Supreme Court highlighted this exact problem when the State of Alabama demanded that the National Association for the Advancement of Coloured People (NAACP) disclose its list of members. In NAACP v Patterson, the Court held that by compelling the disclosure of the NAACP’s membership lists, Alabama was violating the privacy of group association which was essential to the freedom of association. The Court stated that, “we think it apparent that compelled disclosure of the petitioner’s membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.

The Court stated the obvious, that disclosure would dissuade individuals from joining the NAACP as they may face reprisal due to their membership. Crucially, the Court went on to hold that it did not matter that this reprisal was not from the government and may have been from fellow citizens. The Court noted:

It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of NAACP’s members may have upon participation by Alabama citizens in NAACP’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.

Therefore, it should not matter that an individual facing discrimination or violence due to their conversion to a religion does not face this hardship at the hands of the State. By requiring public notice of conversion, the government is opening up these individuals to the risk of reprisal for actions that they have a constitutionally protected right to pursue.

Treatment in India

The requirement for public notice as espoused by the Rajasthan High Court has in fact been explicitly struck down by both the Himachal Pradesh High Court, and the Delhi High. In striking down the requirement of public notice prior to religious conversion in the Himachal Pradesh Freedom of Religion Act, Justice D. Gupta stated, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret” (See Evangelical Fellowship of India v State of HP). The Court also noted that the government failed to show how requiring people to publicly disclose their conversion to another religion would in any manner stop, or even reduce forcible religious conversions.

The Delhi High Court also had similar observations regarding the notice requirements in the Special Marriages Act (SMA). While each religion in India has its own set of marriage laws, the SMA allows for inter-religious marriage. Prior to marriage however, there was a requirement to publicly disclose the inter-religious marriage by a notice at the residence of both the husband and the wife to-be. The Delhi High Court struck down this requirement stating that requiring individuals to disclose their marriage to the public was a violation of their right to privacy. As in the two cases above, the Court is affirming the right to privacy that individuals have regarding their associations. This anonymity in association is essential to the meaningful enjoyment of the “freedom of conscience” that Article 25 guarantees. The Court also noted, “The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In Certain instances, it may even endanger the life or limb of one at the other party due to parental interference.

The case of Chirag Singhvi and countless others is a testament to the fact that the fears of the Delhi High Court were well founded. By requiring individuals to disclose their association on marriage or religion, the State violates their right to privacy and puts them at risk of social persecution.

Post Puttaswamy

It is pertinent to note that these decisions were all prior to last year’s landmark Right to Privacy judgement. In Puttaswamy the Supreme Court emphatically asserted that the right to privacy protects an individual’s “choice of preference” on matters of religion, and stated, “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom, to express or not express those choices to the world.” (⁋169) Requiring that individuals provide public notice of their intention to convert from one religion to another seems to fall foul of this right to anonymously practice one’s religion articulated by the Supreme Court, and places the guidelines in a rather dubious position.

Conclusion

The Rajasthan High Court cited the Law Commission’s 235th Report as evidence of the rising problem of religious conversions, and the need to regulate them. It is true that the Law Commission did lay down certain guidelines, but it prefaced these guidelines by stating, “statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable”. The High Court may have enacted the guidelines in the hope of reducing litigation of the kind in Chirag Singhvi, but such cases centre around the appreciation of evidence, something no statute or guideline can ever achieve. After examining the FIR, the various statements, and the testimony of the Molvi, the Court dismissed the case by stating that Payal Singhvi and Faiez Modi are free to go and “at liberty to live their life as per their choice.” If only the Court had extended this courtesy to the rest of the residents of Rajasthan.

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From a Culture of Authority to a Culture of Justification: The Meaning of Overruling ADM Jabalpur

The nine-judge bench judgment of the Supreme Court in Justice K.S. Puttaswamy vs Union of India is now four-and-a-half months old. The verdict, which held that there exists a fundamental right to privacy under the Indian Constitution, has been analysed threadbare. Its implications for decisional autonomy, personal choice, State surveillance, informational self-determination, and many other facets of privacy, have been debated and discussed. In the coming months, the Supreme Court will have an opportunity to cement the legacy of Puttaswamy, when it hears cases pertaining to almost all these issues. However, there is one aspect of the judgment that has received universal approbation, but no analysis. This is the Court’s decision to overrule its 1976 judgment in ADM Jabalpur vs Shivakant Shukla, the Emergency-era verdict that is widely accepted to mark the “lowest point” in the Court’s history.

Recall that ADM Jabalpur concerned the question of whether individuals who had been preventively detained by the State had the right to approach the Courts in a habeas corpus petition. The background context was the existence of a Presidential proclamation of a State of Emergency; this Proclamation also suspended the the locus standi of all individuals to move the Courts for relief, in case they were detained. A majority of the Supreme Court held that the Presidential Proclamation had validly suspended the remedy of habeas corpus under the Constitution; and because there existed no rights or remedies outside the confined of the Constitution, the Presidential Proclamation acted as a complete bar to exercising the fundamental right to life and liberty. Consequently, a detained person could not approach the Courts arguing that his detention was illegal or unconstitutional.

In Puttaswamy, Justice Chandrachud (writing for a plurality of four judges), Justice Nariman and Justice Kaul all categorically overruled ADM Jabalpur. Their reason was that there were certain basic rights that were recognised by the Constitution, but not conferred by it. These rights were inalienable, and inhered in all human beings simply by virtue of their being human. Specifically, therefore, Puttaswamy overruled the finding in ADM Jabalpur that the Constitution was the sole repository of the rights of citizens.

A narrow view of Puttaswamy would limit it to doing only so much. I think, however, this would be a mistake. It would be a mistake because ADM Jabalpur’s ruling on the character of rights under the Constitution cannot be taken in isolation. It was part of a larger judicial logic that, following the South African Constitutional scholar Etienne Mureinik, I shall label the “culture of authority.” And the repudiation of ADM Jabalpur in Puttaswamy, I will argue therefore, was a repudiation of the culture of authority itself; Puttaswamy is best understood as providing a bridge – a bridge from ADM Jabalpur to a new understanding of the Constitution, an understanding that is based on the “culture of justification.”

ADM Jabalpur and the Culture of Authority 

Recall that in ADM Jabalpur, there were two issues. The first was whether the Presidential Proclamation of Emergency acted as a complete bar to the enforcement of the individual right to life and personal liberty in the courts. The second was the constitutional validity of Section 16(9A) of the Maintenance of Internal Security Act, that allowed for a detenu not to be given access to the grounds of his detention. The broader political context, of course, was Prime Minister Indira Gandhi’s decision to impose an Emergency on the basis that there was a grave internal disturbance that threatened the life of the nation.

Consequently, ADM Jabalpur was delivered during a “state of exception” – that is, a situation where the Executive has suspended the normal functioning of the state, ostensibly to deal with an existential threat. The four majority opinions reflect this in granular detail. The reasoning that culminated in the majority holding that the detenus could not approach Court challenging their detention was based on four principal prongs, each of which reflected the logic of the state of exception.

A. The State of Exception 

The first prong was based on the proposition that the questions of when circumstances arose that justified the imposition of a state of exception (“Emergency”), and what rights and remedies citizens were to be allowed during a state of exception, were to be decided solely by the Executive. As Justice Beg observed:

Laws and law Courts are only a part of a system of that imposed discipline which has to take its course when self-discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.

Similarly, Justice Chandrachud wrote that “the facts and circumstances leading to the declaration of emergency are and can only be known to the Executive… Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts of law.” He went on to state that:

The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes ins personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one’s own pre-disposition. is conducive to a more realistic appraisal of the emergency provisions.

At the heart of this articulation is not only the idea that extraordinary times call for extraordinary measures, but also that the determination of when extraordinary times have come upon us, and what extraordinary measures are needed, are for the State to decide. As the Nazi legal theorist Carl Shmitt wrote, “the sovereign is he who decides the State of exception.” According to the Jabalpur majority, this aspect of sovereignty lay solely with the Executive. So, Justice Chandrachud was able to write:

The people of this country are entitled to expect when they go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament, while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.

The same logic was at play in the Majority’s decision to uphold Section 16(9A), with Chief Justice Ray noting that:

The reason why Section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power… the grounds of detention and any information or materials on which the detention and the declaration were made are by Section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.

A corollary to this was that the very act of vesting such extraordinary power with the Executive raised no constitutional concern. Justice Bhagwati, for example, held that the mere possibility or hypothesis that power might be abused was no ground to deny the existence of the power itself. And Chief Justice Ray noted that:

People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious alignment of the governance of the country. Quite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

B. Rights and Remedies

Secondly, ADM Jabalpur stood for the proposition that the removal of a remedy did not affect the existence of a right. The Presidential proclamation in question provided that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution would remain suspended for the period of the Emergency. All four judges in the majority held that by virtue of the Presidential Proclamation of Emergency, it was not that Article 21 was removed or ceased to exist; it was simply that a detenu could not approach the Court under writ proceedings to enforce his right under Article 21.

C. Jurisdiction of Suspicion 

Thirdly, ADM Jabalpur endorsed and authorised what Justice Beg referred to as a “jurisdiction of suspicion”:

Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim; which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a “jurisdiction of suspicion.”

The crucial point was that the validity or reasonableness of the suspicion was entirely up to the Executive to decide. Since the right to move Court stood suspended, no detenu could approach a judicial authority and attempt to prove that the “suspicion” on the basis of which he had been detained was actually groundless, or illegal, or motivated by mala fides. Here again, the overarching justification was that of national security.

D. Salus Populi Est Supreme Lex

Lastly, ADM Jabalpur stood for the proposition that the liberty of the individual was not a paramount value under the Constitution, but simple one among many values to be weighed in the scales – and, in particular, always to be overriden by the principle of “salus populi est supreme lex” (“regard for public welfare is the highest law”). For example, Justice Beg warned against “a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking a principle of interpretation for cases of doubt or difficulty.” This, in turn, was drawn from the belief that individual liberty was a “gift” bestowed by the Constitution and the State, which could be withdrawn during a state of exception. For this, all for judgments of the majority relied upon the wartime British judgment in Liversidge vs Andersen, which had upheld the untrameled power of the Home Secretary to detain people, free from the constraints of judicial review. As Justice Beg wrote:

Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable, but a political or administrative issue.

Let us now sum up the elements of the “culture of authority” that was at the foundation of the majority opinions in ADM Jabalpur.

  • There exists a state of normalcy and a state of exception (the paradigmatic example of which is an Emergency).
  • The Executive has the sole prerogative of determining when circumstances exist that a State of Exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during a State of Exception.
  • The Executive is guided by the principle of “salus populi est supreme lex” (regard for public welfare is the highest law). It is not for the Courts to ask whether:
    1. The conditions requiring the state of exception to be called really exist or not (summed up by defining Court defining the preventive detention powers as a “jurisdiction of suspicion”, and disclaiming the need for showing proximity.
    2. Whether the Executive’s actions actually serve public welfare or not.
  • During the State of Exception, the Executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy.
  • The fact that such a power is vested in the Executive and is capable of abuse is no ground for the power not existing. The Executive is always presumed to act in good faith.
  • In sum: “salus populi est supreme lex” is like the Ninth Schedule of constitutional interpretation.

The Foundations of Justice Khanna’s Dissent

In his sole dissenting opinion, Justice Khanna launched a fundamental challenge to this entire way of thinking. Justice Khanna’s dissent was not based merely on a difference with the majority about the question of whether rights existed outside the Constitution or not. Rather, his different was more fundamental, and went to the root of what it meant to live under a Constitutional republic. According to Justice Khanna, at the heart of a constitutional republic was the maintenance of a balance of power between State and individual. The issue was not whether the State may or may not abuse its powers, and the manner in which it might abuse its power in order to violate individual liberty. The issue, rather, was that the very existence of certain kinds of power with the State was a violation of liberty. As he noted:

“…experience should, teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion-of their liberty by evil-minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of few.”

And:

Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that Article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.

Constitutionalism meant curtailing what the State was able to do its citizens. To give the State power to both determine the state of exception, and then also to determine what rights and remedies citizens had during such a period, simply on the invocation of salus populi, was to make a mockery of the very idea of a constitutional republic. Consequently, Justice Khanna rejected the argument that, in the interests of public safety and public welfare, the Executive could be left to solely determine the scope and ambit of rights enjoyed by citizens, noting that “the power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law.”

A corollary of this was Justice Khanna’s rejection of the “jurisdiction of suspicion” – that is, the idea that during the state of exception, the Executive was vested with the sole power of curtailing the liberty of any individual it suspected of being a threat to the established order:

Normally, it is the past conduct or antecedent history of a person which shows a propensity or a tendency to act in a particular manner. The past conduct or antecedent history of a person can, therefore, be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner. In order to justify such an, inference, it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct an activities of a person which took place ten years, before the date of ins detention and say that even though after the said incident took place* nothing is known against the person indicating ins tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that ins detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular’ foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting; in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the) detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order.

Towards the Culture of Justification 

Justice Khanna’s dissenting opinion in ADM Jabalpur, reminiscent of Lord Atkins’ dissent in Liversidge vs Andersen, exemplified the “culture of justification”. Mureinik writes thus:

If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification –a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.

The phrase “every exercise of power is expected to be justified” is at the heart of this vision of constitutionalism. In particular, it is a complete repudiation of salis populi supreme est lex. The State cannot simply decide to compel its citizens by invoking the larger goal of public welfare. The State must, rather, justify every act of compulsion. It must justify, for example, that its exercise of power will actually serve public welfare. It must explain how it will do so. It must explain that the only way of doing so is through the route of force and compulsion. It must prove that there is no other non-coercive way of achieving that goal, and that it is not imposing any more compulsion than is strictly required in the interests of public welfare. It must show that the amount of power it arrogates to itself in order to carry through its coercive action is proportionate to the importance of the goal it seeks to achieve. And the State cannot impose a regime of permanent suspicion: a regime in which the only justification for the exercise of coercion is that all citizens are potential criminals, and preventive compulsion is the only effective mechanism of preserving the public good. The culture of justification prohibits the State from presuming criminality and law-breaking.

And most importantly, the State cannot be the sole judge and arbiter of these questions. It is the constitutional courts that must carefully examine and scrutinise each of these issues, where the exercise of power is concerned. The courts need not attribute bad faith to the State, or assume the existence of abuse; rather, as Justice Khanna pointed out all those years ago, the Court must be “most on… guard to protect liberty when the Government’s purposes are beneficent.” Therefore, it is precisely when the State claims salus populi, and asks the Court to back off so that it can freely exercise compulsion in order to secure public welfare, that the Court must be at its most vigilant. It is then that the hardest and most searching questions must be asked of the State, and the State put to strict proof in answering the questions outlined above. To adopt a hands-off approach on the basis that these are questions of “high State policy”, and that it is not for judicial authorities to enter into the realm of policy-making and second-guess the State on issues of general welfare, would be only to repeat the mistake of ADM Jabalpur, and ignore the lesson of Justice Khanna.

In the coming months, the Court is scheduled to hear a number of constitutional cases that have far-reaching effects on individual freedom and State power. When it decides those cases, the shadow of Puttaswamy and of Justice Khanna will loom large. It is now for the Court to complete the transformation from the culture of authority to the culture of justification, which was the promise of the Constitution, the hope of Justice Khanna when he dissented, and the beginning of the path outlined in Puttaswamy.

This is, after all, a Constitution that chose to make the individual its basic and most fundamental unit.

 

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Filed under Article 21 and the Right to Life, Constitutional interpretation, Personal Liberty, Political Theory, Privacy

Section 377 Referred to a Constitution Bench: Some Issues

In an order passed today, a three-judge bench of the Supreme Court, headed by the Chief Justice, referred the correctness of the judgment in Suresh Kumar Koushal vs Naz Foundation to a Constitution Bench. Because of the complex history of this case, some background is essential to understand the implications of today’s order. Recall that on December 11, 2013, a two-judge bench of the Supreme Court, in Koushal, had upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises carnal intercourse against the order of nature. In doing so, the Supreme Court overturned the 2009 judgment of the Delhi High Court in Naz Foundation vs NCT of Delhi, which had read down Section 377 and decriminalised consensual same sex relations between adults. Although the Supreme Court did not specify what constituted “carnal intercourse against the order of nature”, its judgment was widely understood to recriminalise homosexuality in effect, if not in so many words.

Soon after the judgment in Koushal, a different two-judge bench of the Supreme Court delivered judgment in NALSA vs Union of India, where it upheld and affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution. As I argued at the time, Koushal and NALSA rested on mutually irreconcilable foundations – the exact arguments that had been rejected in Koushal had been accepted in NALSA, and so, the only way out was to review the correctness of Koushal.

In the meantime, review petitions contesting the correctness of Koushal had been dismissed. Petitioners then took the last route open to them: they filed curative petitions. A curative petition is an extraordinary remedy developed by the Supreme Court in its 2002 judgment in Rupa Ashok Hurra. It is basically a remedy of the last resort: even after a review is rejected, the Court may still reconsider its judgment in certain exceptional circumstances. Hurra set out the exceptional circumstances:

“… this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner… we are of the view that since the matter relates to re- examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”

The rarity of the curative remedy is reflected by the fact that in the fifteen years since Hurra, only four curative petitions have been allowed. However, in 2014, Petitioners won a significant victory when the Court agreed to hear the Naz curative in “open court” – most curative petitions are dismissed by circulation in judges’ chambers.

The Naz curative was then listed for hearing on the 2nd of February, 2016, before the three senior-most judges at the time – Chief Justice Thakur, and Justices Dave and Khehar. After some oral argument, the Court passed the following order:

“All that we need say is that since the issues sought to be raised are of considerable importance and public interest and since some of the issues have constitutional dimensions including whether the Curative Petitions qualify for consideration of this Court in the light of the Judgment in Rupa Ashok Hurra’s case (Supra), it will be more appropriate if these petitions are placed before a Constitution Bench comprising five Hon’ble Judges of this Court.”

In other words, all questions – including the question of whether the curative petition could be admitted for hearing – were to be decided by a five-judge bench.

Later that year, however, a fresh petition was filed challenging the constitutional validity of Section 377.  Navtej Johar vs Union of India was filed by five LGBT individuals as a writ petition under Article 32 of the Constitution (and not a public interest litigation, like Naz Foundation was), alleging direct violation of fundamental rights. When this petition came before a two-judge bench of the Court on 29th June 2016, the Court passed the following order:

“The issue pertains to the validity of Section 377 of the Indian Penal Code. We are informed that the Constitution Bench of this Court is hearing the issue. Post this matter before Hon’ble the Chief Justice of India for appropriate orders.”

Both the curative petitions and this petition then went into cold storage. In late August 2017, however, the nine-judge bench of the Supreme Court handed down the famous “Privacy Judgment”. As we have discussed before, the a majority of judges in the privacy judgment directly held that sexual orientation was a facet of privacy, and very publicly doubted the correctness of Koushal. In his plurality, Justice Chandrachud observed:

…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

While, therefore, judicial propriety and discipline prevented the nine-judge bench from overruling Koushal, there was little doubt that the bottom was entirely knocked out of that judgment – and it was only a question of when – not if – Koushal would be overruled.

It is in this context that we must understand today’s referral order. The order was made in the Navtej Johar petition, which had been filed after the initial curative hearing, and had not been tagged with the curative petitions. In the order, the Court observes the existence of the NALSA judgment, and also Puttaswamy. It then notes:

“… the said decision [Puttaswamy] did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger Bench. The matter which was pending before the larger Bench is a Curative Petition which stands on a different footing.”

After noting that the issue of consensual same-sex relations “needs to be debated”, the Court concludes as follows:

“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

A few questions arise from this. The first and most important is: what is status now? In Puttaswamy, the Court specifically declined to overrule Koushal on the basis that it was already being considered by a Constitution Bench. Today’s order effectively authorises the Chief Justice to set up a parallel Constitution Bench that will also consider Koushal. In that case, what happens to the curative proceedings? Today’s order observes that the curative proceedings “stand on a different footing”; that is, of course, true. The curative petitions have to be argued according to the very strict Hurra standard (see above), and cannot also invoke NALSA or Puttaswamy. A judgment asking for reconsideration of Koushal, however, is not bound by the Hurra standard.

That, however, leads to a conceptual problem: given that a curative petition in Koushal is pending and has been specifically referred to a Constitution Bench, clearly, Koushal is already under reconsideration. Or, to put it another way, the judgment in Koushal has not yet attained finality – it is subject to the outcome of the curative proceedings. From that perspective, today’s order appears to either mandate the reconsideration of a judgment that is already being reconsidered (if you take the judgment itself as final), or to mandate the reconsideration of a judgment that is not yet final (if you take the conclusion of curative proceedings as the point of finality).

The situation is further clouded when you consider the fact that – as the Court held in Hurra “the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench.”

In other words, the task of a curative bench, if the curative petition succeeds, is to send the matter back for a fresh hearing (and not to decide the case on merits itself). That is, if a curative petition succeeds, then the judgment under challenge is to be reconsidered.

But that is exactly what today’s order, in effect, achieves, when it says that “the decision in Suresh Kumar Koushal’s case requires reconsideration.” Or, in other words, today’s order effectively allows the curative petitions by a side-wind. Suddenly, the most difficult hurdle before the original petitioners – to meet the threshold requirements under Hurra – has been swept away.

The upshot, therefore, is this: the pending curative petitions have now been made effectively infructuous (by that I mean that while the curative petitions are still pending, and technically due to be heard, their subject matter – crossing the Hurra threshold – has effectively been decided separately now, so in substance, there is nothing that remains to be argued when they do come up for hearing). By virtue of today’s order, the issue of the constitutional validity of Section 377 is to be heard afresh, and the correctness of Koushal to be reviewed from scratch. There will of course be some procedural issues to untangle – the petitioners in the curative petitions will now have to either get those petitions tagged with Johar or file fresh intervention applications. The basic point, however, is that today’s order marks a very significant advance in the legal struggle against Section 377.

One last point: today’s order calls for a reconsideration of Koushal primarily by invoking the judgments in NALSA and PuttaswamyPuttaswamy, of course, was entirely about the right to privacy, and the relevant portion of NALSA cited by the Court also refers to privacy (in the context of Article 21). This should not result in the future Supreme Court hearing reviewing Koushal only on the grounds of privacy; Koushal‘s analysis of Articles 14 and 15 was every bit as wrong-headed as its “understanding” of Article 21. If the Court is now going to hear the case afresh, then it will, hopefully, rule not only on Article 21, but on issues of equality and non-discrimination as well.

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Filed under Bodily Privacy/Integrity, Decisional Autonomy, Equality, Privacy, Sex Equality, Sexuality