The Kenyan High Court on Forced Sterilisation, Informed Consent, and Constitutional Damages

In a judgment delivered on 16th December 2022 (L.A.W. vs Marura Maternity and Nursing Home), the High Court of Kenya handed down some interesting findings with respect to informed consent to medical procedures, as well as the important issue of constitutional damages enforceable against private parties.

The facts, in brief, were as follows: in 2006, when the Petitioner was pregnant with her second child, she visited a health centre for an ante-natal check-up, and was found to be HIV-positive. A nurse at the Baba Dogo Health Centre advised her not to have more children, in the interests of her own health, as well as the life of the baby. Subsequently, she was referred to a community health worker at Karogocho, who gave her two vouchers titled “CS” and “TL”, and told her to use them at the Marura Maternity and Nursing Home (Respondent No. 1), when she was due for delivery. The Petitioner did so, and after a Caesarean section operation, successfully gave birth. Soon after, the Petitioner lost her husband. She remarried in 2010, but found that she was unable to conceive. On visiting a medical camp, she was told that her fallopian tubes had been blocked. On enquiries, it turned out that “TL” stood for Tubal Ligation, and it was at the Respondent No. 1’s clinic where this procedure had been carried out on her. The Petitioner, therefore, sued.

Before the High Court, it was not in dispute that the Tubal Ligation process was performed on the Petitioner, permanently depriving her of the ability to bear children. This implicated several rights under the Kenyan Constitution: the right to the highest attainable standard of health, including the right to reproductive healthcare (Article 43), and other rights such as the rights to family, dignity, privacy, non-discrimination etc. The positive obligations under Article 43 required “the State to inter alia develop health policies, legislate on health, building and equipping hospitals, employ qualified health professionals and facilitate their training from time to time.” (para 59) In partial fulfilment of these positive obligations, the State had enacted the Health Act of 2017, which mandated full and complete information regarding the provision of healthcare services to those affected.

Having thus established the constitutional and statutory framework, and the rights at stake, the key question before the Court was whether the petitioner’s informed consent had been taken for performing the TL process. This was because the Health Act – which, according to the Court, stood at the level of a constitutional statute (para 169) had specifically set out a definition of ‘informed consent,’ which, in turn, had been further specified in The Kenyan National Patients’ Rights Charter. According to the Charter, the right to informed consent to treatment entailed:

To be given full and accurate information in a language one understands about the nature of one’s illness, diagnostic procedures, proposed treatment, alternative treatment and the cost involved for one to make and decision except in emergency cases … the decision shall be made willingly and free from duress. 

Relying upon this framework, the Mrima J then made the following important observation:

It is indeed a fact that in most cases there is a grave imbalance of knowledge and information between the healthcare provider and the person receiving the professional services. As such, a healthcare provider is under an obligation to ensure that such information is accurately broken down and communicated to the patient and in a language that the patient or user understands. (paragraph 176)

This passage is important, as it lays down both the burden of proof and the standard of proof for informed consent. Because of the institutional difference of power between the healthcare provider and the patient, the burden of eliciting informed consent lies upon the former, and in order to do so, they must ensure accurate and effective communication in a manner that is intelligible to the patient, based on their socio-economic circumstances. The Court also noted that these principles, in effect, had been codified in Sections 8 and 9 of the Health Act (paragraphs 177-180), and were in line with international best practices (paragraphs 181-187).

Applying these principles to the case at hand, the Court found that during the TL procedure, the surgeon “asked [the petitioner] whether she knew she was being sterilized and she answered in the affirmative” (paragraph 195), but nothing more. During cross-examination, the petitioner stated that she had not been informed that the procedure was irreversible (paragraph 197).

On the basis of this, the Court found that there was no informed consent. In particular:

[The Petitioner’s] low level of literacy and understanding of family planning options and health generally imposed upon healthcare providers a high legal duty to facilitate her consent … they had the obligation to break down and convey in a language she understood the information as to what BTL entailed in the first place, its implications and check to ensure that she had understood what was the procedure was all about … in addition, the healthcare provider had a legal duty as required under Sections 8 and 9 of the Health Act to explain to her the available alternatives of family planning. (paragraphs 204-206).

The casual manner in which the petitioner had been asked if she knew that she was being sterilised (without more context), the sketchy consent form itself, and no further evidence tendered on how the consent was procured, therefore persuaded the Court that the required threshold had not been met, and consequently, the Petitioner’s constitutional rights had been breached.

This, then, brought the Court to the question of remedies. In the present case, the Petitioner’s rights had been violated by two private, non-State bodies – i.e., the two clinics involved. The Court noted that:

As is the case in constitutional Petitions, there are arrays of available remedies. What a Court endeavours to do upon confirming of any infringement is to grant an appropriate remedy. Even in instances where a party fails to ask for a specific relief, a Court, depending on the nature of the matter ought to craft an appropriate relief. (paragraph 244)

The appropriate remedy, the Court decided, was constitutional damages, which it proceeded to grant.

In my view, however, the basis for the remedy was left somewhat unclear. In paragraph 248, the learned Judge referred to his prior judgment in Patrick Alouis Macharia Maina, and relied upon the doctrine of constitutional tort. A perusal of Patrick Alouis, in turn, reveals that the basis of the constitutional tort doctrine is the Court of Appeal judgment in Gitobu Imanyara vs Attorney-General. Gitobu Imanyara, however, was a case involving State action, and the doctrine of constitutional tort was invoked as a public law remedy to deal with cases where, in essence, the State’s tortious action leads to a violation of constitutional rights. The doctrine of constitutional tort is not normally used in cases of private violations of constitutional rights.

That is not to say that the remedy couldn’t have been granted. However, I believe that to do that required the Court to use the bridge of Article 20 of the Constitution, which applies constitutional rights horizontally, against private parties. While the text of Article 20 is unbounded – it applies constitutional rights horizontally in all cases – the Kenyan courts have, through interpretation, narrowed its scope (see this paper) – in particular, to cases of serious constitutional violations, where alternative remedies are do not exist or are inaccessible. In my view, both conditions were met in this case. Now, once Article 20 was called into play, and the rights in question held to apply horizontally, it would follow that the doctrine of constitutional tort could be likewise incorporated, as the doctrine is agnostic towards the nature of the duty-bearer once the violation of rights has been established. The proposed solution, thus, would require the Court to (a) demonstrate the applicability of Article 20 under existing Kenyan jurisprudence, and (b) having done so, transplant the constitutional tort doctrine from the vertical to the horizontal context – instead of directly invoking constitutional tort.

In sum, therefore, the judgment of the High Court makes important strides in the context of informed consent in situations of vulnerability, and constitutional damages for breach of the same; where it arguably comes up short is in a full articulation of how and when the constitutional tort doctrine applies to private parties, via Article 20. That might be for a case for another day!

Guest Post: Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case

[This is a guest post by Megha Mehta.]

---

A Division Bench of the Supreme Court is currently hearing SLPs from Resham v. State of Karnataka, (MANU/KA/0912/2022) the Karnataka High Court judgement upholding the ban on hijab in state government-run educational institutions. Judging by what has been reported in legal news portals, the hearings have gone on the tangent of whether it is permissible to proscribe a ‘uniform dress code’ (a sartorial precursor to the UCC?) in ‘secular’ government institutions. Keeping aside the debatable nature of some of the observations made by the Bench, the issue now risks being collapsed into the same category as controversies involving Sikhs’ right to wear the turban in the army, the rights of Muslim airforce officers to have beards, whether the essential religious practices [ERP] test applies, etc.

However, this eclipses the larger jurisprudential point, i.e., to what extent should the State/judiciary intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women? Whose version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves? This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions challenging the practice of polygamy and nikah halala amongst Muslims.

I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender equality and religious freedom: Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’). In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’ between the right to equality and protection against gender discrimination versus the right to freedom of religious practice. Moreover, in both cases the Court has sought to resolve this conflict by applying considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the women affected by the practice.

Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test, and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral divorce disadvantages Muslim women. Indeed, the majority as well as the dissenting opinions referred to the Muslim woman in protectionist language, framing her as a victim of religious oppression. [1]

In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the Sabarimala temple is an “essential practice” of Hindu religion. Rather, he commented that it is essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement, ¶122) affirming the idea that Hinduism has always been egalitarian. On the other hand, Nariman J. and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution. (¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices should be to bypass the ERP test altogether. Instead, the question should be whether the impugned practice results in the exclusion of a group of citizens and thus violates the fundamental principles of dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained in the Constitution. (¶215-216)

There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect. From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation, promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious practice has the effect of denying civic equality to women. Notably, the anti-exclusion principle as developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s ‘capabilities approach.’ Nussbaum has also argued, in relation to the Hindu Code Bill debates and the Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights. This particularly includes practices which stigmatize individuals on account of their sex. [2]

Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian Constitution’s transformative potential is a powerful tool for checking the subordination of women by religious norms. However, there are some important nuances which are not expressly clarified by the judgement though they may be implied therein—who is the correct authority for making assessments about what constitutes ‘dignity’ and ‘exclusion’? What if the affected group does not see religious worship and the enjoyment of fundamental rights in bright line/hierarchical terms—what if women wish to build a feminist reinterpretation of the religious practice into the law rather than arguing for it to be declared illegal/unconstitutional? It may be argued that since the anti-exclusion principle is undoubtedly a tool for achieving substantive equality, the views of the purportedly marginalized group should take precedence over that of any other authority. However, if you apply intersectionality as a framework, how should the State/judiciary respond to fractures within the group? What if upper-caste women and Dalit women have substantially differing ‘moral understandings’ of a religious practice? What about differences between Sunni and Shia Muslim women? Etc. etc.

In this respect, neither Shayara Bano nor the Sabarimala judgement have directly quoted women worshippers’ views on how they are excluded by the impugned practice or discussed dissonances therein—arguably it’s the judges’ own moral views on the subject which are taking center stage. The Sabarimala judgement has in fact, expanded the scope of the Supreme Court’s jurisdiction to entertaining PILs against allegedly exclusionary religious practices even if no woman worshipper has personally complained of discrimination (The petitioners in that case did not subscribe to the worship of Lord Ayappa). The counsel for the respondents had raised this issue in their submissions before the Supreme Court. However, both Nariman J. and Chandrachud J. emphasized in their respective concurring opinions that the “gravity of the issue” necessitated that the petition be heard, notwithstanding this anomaly. (Sabarimala judgement, ¶198, 224. Both judges cited Adi Saiva Sivachariyargal Nala Sangam v. State Of Tamil Nadu, (2016) 2 SCC 725, 737, ¶12 on this point.) Interestingly, it was the lone female justice, Indu Malhotra J. who highlighted in her dissent that permitting PIL’s in matters relating to religious practices, particularly by persons who do not subscribe to the faith, “would open the floodgates to interlopers” to question such practices, “and that the perils are even greater for religious minorities if such petitions are entertained.” (¶447) Notwithstanding criticisms of ‘anti-feminist’ thinking/conspiracy theories of a general pro-temple management stance concerning her decision, permitting ‘ideological challenges’ does create a due process issue given that the Court’s precedent will bind the affected group, i.e., religious women, without any mechanism to ensure that their interests are adequately represented. [3]

It can be counter-argued that Resham presents a substantially different bundle of facts since over here Muslim women are not challenging the constitutionality of a religious practice on the grounds that it demeans them, but are rather seeking the autonomy to continue following it contrary to State diktat. To that extent the application of the anti-exclusion principle should not encounter any difficulty if the women are able to prove that wearing the hijab does not stigmatize them as unequal, but is in fact essential to facilitating their full participation in civil society. Nevertheless, the High Court has completely ignored this distinction. The Advocate General of Karnataka quoted the Sabarimala judgement to argue that the hijab as a form of ‘compulsion of dress’ is not acceptable as it violates ‘constitutional morality’ and ‘individual dignity.’ The High Court went a step further and quoted Dr. B.R. Ambedkar on how the purdah system brings about the “segregation of Muslim women” and makes them “helpless and timid” to legitimize its conclusions on why the hijab militates against anti-exclusion and equality of opportunity (This of course, completely ignores the fact, as argued by Devdutt Kamat, that purdah and hijab are sociologically distinct practices).

The aforesaid reflexive application of the Sabarimala judgement to Resham is better understood from a law and political economy lens. From a legal realist perspective, though the Constitution embodies a transformative vision of Indian society, it is also in some respects a political compromise, given the ghost of Partition. Hence whilst Article 25(1) explicitly makes religious freedom subject to other provisions of Part III of the Constitution, Article 25(2) delegates the power to undertake social reform to the State. This echoes Dr. Ambedkar’s assurance to religious minorities during Constituent Assembly debates that “all that the State is claiming…is a power to legislate” and that their personal law would not be modified without popular consensus. (See Constituent Assembly Debates (Vol. VII), Dec. 2, 1948 speech by B.R. Ambedkar 7.65.178) In both Shayara Bano and the Sabarimala judgement, the Supreme Court has opened the floodgates to ‘ideological challenges’ to religious practices, sidestepping determination of popular consensus and deliberation by the legislature on the matter. The Karnataka government’s example indicates that such interventions by the judiciary are likely to push the executive to reclaim the mantle of ‘social reform’, and appropriate concepts like ‘constitutional morality’ and ‘dignity’ to enforce its own political agenda of ‘formal equality’ amongst religions [See 1].  On the other hand, the Supreme Court while hearing the challenge to the hijab ban, continues to parallelly act as a counter-majoritarian theological reformer in cases like polygamy/nikah halala. Scholarship critiquing rights-based reasoning has highlighted that the outcomes of ‘rights’-based cases often depend on the subjective political commitments of the judges hearing the case more than the inherent content of rights, which makes rights discourse ripe for appropriation across the political spectrum. [4] Therefore there is no guarantee that the same understanding of anti-exclusion which was applied in the Sabarimala judgement will be extended to similar cases involving ideological contestations over purportedly ‘anti-women’ religious practices (as evidently happened in Resham). In the political tangle between a majoritarian executive/legislature and a judiciary which is prone to changes in Bench composition, women’s voices are bound to be lost.

Thus, rather than delving into vague speculations about ‘secularism’, ‘liberal constitutionalism’ and the problematic ERP test, the Court should take a closer look at the anti-exclusion approach and refine it in a manner that can be used to resolve the conundrum of enforcing gender justice in religious communities. It is worth asking: which institutions are legitimately equipped to address such concerns? Can there be reconciliation, rather than rights conflict, between religious liberty and gender equality? (Malhotra J.’s dissent in the Sabarimala judgement indicated the possibility of a harmonious approach.) How can women’s voices be brought to the forefront? How do we avoid the problem of legal paternalism, i.e., courts/legislatures thinking they know ‘better’ than women themselves as to whether a particular practice is ‘dignifying’ or ‘exclusionary’? How do we deconstruct ‘woman’ itself as a monolithic category? These questions are particularly pertinent to any adjudication on the hijab, given that the existing binary between denouncing it as ‘oppressive’ and accepting it as a mandated Quranic injunction ignores the spectrum of unique reasons that Muslim women have for wearing it. Till the time courts adopt an adequate intersectional feminist analytical framework, we are unlikely to find much satisfaction in judicial reasoning on the issue.

Endnotes

1. Ratna Kapur, Gender and the “Faith” In Law: Equality, Secularism and the Rise of the Hindu Nation, 35(3) Journal of Law and Religion 407, 418 (2020).
2. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 188 (2012).
3. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy Requirement, 93(2) Harvard Law Review 297, 306, 308 (1979).
4. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 198 (Wendy Brown & Janet Halley eds., 2002); Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart xi, xix (2021).

The ConCast: Episode 4 (5 August 2022)

In Episode 4 of the ConCast, I spoke to Gauri Pillai about abortion laws and the legal landscape of reproductive rights in India. We discussed the recent High Court and Supreme Court orders relating to a twenty-four-week pregnant woman’s petition for an abortion, the history, design, structure, and implementation of the Medical Termination of Pregnancy Act, the origin of “medical boards”, and what a progressive abortion/reproductive rights law might look like.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

References:

Section 312, Indian Penal Code, 1860 [“IPC”].

Medical Termination of Pregnancy Act, 1971 [“MTPA”.

Medical Termination of Pregnancy (Amendment) Act, 2021.

Medical Termination of Pregnancy (Amendment) Rules, 2021.

---

Ms X vs Government of NCT of Delhi (High Court order).

Ms X vs Government of NCT of Delhi (Supreme Court order).

Gauri Pillai, “Two Courts, Two Conclusions: Abortion Law in India.”

---

Suchita Srivastava vs Chandigarh Administration.

Nand Kishor Sharma vs Union of India.

High Court On Its Own Motion vs State of Maharashtra.

Aparna Chandra, Mrinal Satish, Shreya Shree & Mini Saxena, “Legal Barriers to Accessing Safe Abortion Services in India: A Fact Finding Study.”

---

R vs Morgentaler (Canadian Supreme Court).

Guest Post: Two Courts, Two Conclusions: Abortion Law in India

[This is a guest post by Gauri Pillai.]

---

On 15 July 2022, the Delhi High Court, in Ms X v The Principal Secretary of Health and Family Welfare Department Government of NCT of Delhi (‘Ms X’), denied an unmarried woman permission to terminate her unwanted pregnancy at 23 weeks under Section 3 of the Medical Termination of Pregnancy Act, 1971. A week later, through an ad-interim order, the Supreme Court allowed the woman’s appeal against the Delhi High Court’s order, permitting termination as long as a Medical Board confirms that abortion is medically safe for the pregnant woman. In this post, I discuss both these orders, which differ not just in their outcomes but also their reading of the law, and the factors they take into account in decision-making. But first, I briefly set out the legislative framework governing abortion in India.

Legal Background

The legal regulation of abortion in India began with criminalisation. The Indian Penal Code 1860 (‘IPC’) declared criminal voluntarily causing a woman with child to miscarry, unless done in good faith for saving the life of the woman. It brought within the scope of the law both the person causing the miscarriage, and the woman herself. Predictably, criminalisation did not eliminate the need for abortions and only compelled women to seek abortions in unsafe settings from unskilled practitioners, causing death. To quell the rising mortality rate, the State introduced the Medical Termination of Pregnancy Act (‘MTPA’) in 1971, conditionally legalising certain categories of abortions, and exempting them from criminal sanction.

The MTPA allows termination up to an outer limit of 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the foetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped. The 1971 Act was amended in April 2021. As per the amended law, the limit of 20 weeks has been extended to 24 weeks—as long as the above conditions are met—for certain categories of women, as specified in the Medical Termination of Pregnancy Rules 2003, amended in October 2021. Rule 3B lists the following categories: (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government. An assessment as to whether the conditions specified are met is carried out by one medical professional for termination before 20 weeks and two medical professionals for termination between 20 and 24 weeks.

Inclusion of Unmarried Women

An immediate question before both the Delhi High Court and the Supreme Court in Ms X was whether an unmarried woman with a unwanted pregnancy at 23 weeks fell within the ambit of Rule 3B. The Delhi High Court adopted a literal interpretation, holding that since the rule did explicitly not specify unmarried women (unlike, say, widows or divorcees), it did not extend to the petitioner. The Supreme Court, in contrast, deviated from this ‘unduly restrictive’ interpretation, and adopted a purposive reading of the MTPA, making four crucial observations.

First, the Court held that the listed categories of widows and divorcees were simply illustrative of the broader category of change in marital status; they did not exhaust it. This implied that other instances of change in relationship status would also fall within the ambit of the rule. In this case, the petitioner, who was in a consensual relationship, sought termination because she was deserted by her partner: in other words, she decided to terminate her pregnancy due to a change in relationship status, accounted for by Rule 3B. Second, the Court noted that the 2021 amendment to the MTPA modified Section 3 to extend it to unmarried women. Section 3 states that a grave injury to mental health justifying termination can be presumed if pregnancy is on account of failure of contraception. While the 1971 Act saw such failure of contraception as occurring only between a ‘ married woman and her husband’, the 2021 Amendments extend it to ‘any woman and her partner’. This, the Court held, clearly indicated legislative intent to bring pregnancies outside marriage within the reach of the MTPA. Third, the Court observed that the MTPA recognises the ‘reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child’. In light of this underlying purpose, denying the petitioner the choice of termination simply because she is unmarried, the Court remarked, would be at odds with the spirit of the MTPA. Finally, the Court held that live-in relationships have previously been recognised by the Supreme Court, which has refused to impose subjective notions of social mortality through the law to ‘unduly interfere with the domain of personal autonomy’. Drawing the four arguments together, the Supreme Court allowed the unmarried petitioner to terminate her unwanted pregnancy.

This is certainly a crucial development in Indian abortion law. The exclusion of unmarried women from Rule 3B speaks to the law’s questionable elevation of marriage as the only form of relationship that deserves legal recognition, on the basis of which certain groups of women are denied an essential form of healthcare (access to abortion). The exclusion also cements the patriarchal assumption that women ought to express their sexuality only within the institution of marriage. Women who experience a change in marital status (on account of death of their partner or divorce) are thus seen as deserving of the law’s sympathy, while women who engage in sex outside of a marital relationship are punished through withholding their right to access an abortion. In reading Rule 3B and Section 3 to include unmarried women, the Supreme Court rightly refuses to perpetuate these assumptions.

Ignoring the Body

Beyond the Delhi High Court’s restrictive reading of Rule 3B, the High Court also shockingly minimised—to the extent of ignoring—the bodily impact of pregnancy. During the hearing the Court told the petitioner that ‘hardly 12 weeks’ were left to carry the pregnancy to term, after which she could give up the child for adoption. When the petitioner remained firm in her decision to terminate the pregnancy, the Court responded by offering to pay for childbirth in a good hospital. All the petitioner then had to do, the Court’s observations implied, was to carry the pregnancy to term for the remaining 12 weeks. Is that not a reasonable ask, the Court appeared to entreat, to ensure that the foetus survives? In refusing termination, the Court in essence concluded that it was, indeed, a reasonable ask.

However, in arriving at this conclusion, the Court completely disregarded the impact of an unwanted pregnancy on the body of the pregnant women. Pregnancy involves ‘all the body systems, displacing body parts, depleting the body of its necessary elements and changing its chemical balance’. As has been noted within the literature, it increases blood volume by 50%, stroke volume of the heart by 35% and renal function by 50-60%. It decreases lung volume by 20% and the respiratory rate by 15% (2-3 breaths per minute). The pituitary gland enlarges 135% and the production of growth hormones increases dramatically. A whole new organ, the placenta, is generated by the body. The excess progesterone produced by the placenta can cause fluid retention, increase in blood pressure, weight gain and inability to sleep. The size and position of the heart and the uterus change, the latter displacing and compressing other organs in the gastro-intestinal tract. The resulting pressure may affect the circulation of blood, sometimes causing irreversible varicose veins, haemorrhoids and disabling thrombophlebitis. The interference with the gastro-intestinal tract can also cause constipation. The displacement of the urinary tract can result in urinary tract infections. The weight of the uterus can create sacroiliac strain, backache and pressure on the cervical spine, potentially resulting in numbness, tingling, and proprioceptive acuity reduction in the hands. Metabolically, the pregnant woman is in an accelerated stage of starvation due to the nutritional demands of a growing foetus. Increase in oestrogen levels can cause nausea and vomiting in the first four months, resulting in dehydration, extreme fatigue, headaches, confusion, fainting, low blood pressure, rapid heart rate, and anxiety or depression. Childbirth frequently damages the pelvic organs which might then require corrective surgery. Bladder control may be permanently lost.

Notably, these are the biological indications of a medically ‘normal’ pregnancy. Complications during pregnancy could result in a worsening of these conditions or an exacerbation of pre-existing health conditions such as asthma, high-blood pressure or thyroid disease. When the pregnancy is desired, the pregnant woman willingly assumes this demanding physical responsibility. However, when the pregnancy is unwanted, these significant biological changes are externally imposed, and their cost undervalued (or ignored), motivated by the ‘latent assumption’ that ‘motherhood is women’s ‘normal’ condition’, rendering state actors ‘oblivious to the life-consuming consequences of forcing women to perform its work…[A] legislature may not decide that it is reasonable to save unborn life by compelling pregnancy ‘but for’ the archaic or stereotypic assumptions about women it holds’.

The strength of the stereotype is heightened when we acknowledge that in no other context does the law demand that one individual offer bodily assistance to another. As some authors note, the law does not mandate that one jump into a river to save a child from drowning. Closer to the context of pregnancy, the law does not require that a parent run into a burning house to rescue a child, or compel a parent to donate a kidney to a child who needs a kidney even for one day, forget 12 weeks (see here, here and here). Of course, a parent might willingly go into a burning house or donate a kidney to save her child, just like a pregnant woman, who desires the pregnancy, willingly provides her body to nurture the foetus. However, at issue here is an unwanted pregnancy, not a wanted one. Despite refusing to impose a similar responsibility in other analogous contexts, the law on abortion expects pregnant women to protect the foetus in this manner, indicating the role of underlying assumptions about women as mothers.

The Delhi High Court, in its order or during the hearing, made no reference to this demanding, one-of-a-kind physical responsibility imposed on women. The bodily cost borne by women in carrying to term an unwanted pregnancy was thus not just undervalued by the Court, but outrightly ignored. The Supreme Court’s order offered some respite, by emphasising women’s right to bodily integrity. However, even the Supreme Court did not acknowledge the sheer extent of the bodily demand made on women. Forcing a woman to carry to term an unwanted pregnancy is not just a question about her body being used against her will, but also about how her body is being used, and the magnitude of the ask being made of her. Without explicitly recognising the immense bodily responsibility that pregnancy is, especially when it is unwanted, the cost to women from compelling pregnancy will always be diluted (or worse, disregarded).

Growing Prominence of Foetal Interests

The Delhi High Court’s observations during the hearing also speak to another worrying trend: the growing prominence of foetal interests in India’s regulation of abortion. The Court repeatedly stated that allowing termination at 23 weeks would ‘virtually amount to killing the child’. In so observing, the Court seems to view the 23-week old foetus as a child (presumably with a right to life). This is contrary to the earlier Supreme Court decision in Suchitra Srivastava, which views the foetus only as a ‘prospective child’, and the Bombay High Court decision in High Court on its Own Motion where the Court held that ‘an unborn foetus is not an entity with human rights… A child when born and takes first breath, is a human entity’. Even parliamentary debates on the MTPA make clear that the foetus, under Indian law, is not seen as an unborn child. Though two members of the Parliament in 1971 and one member in 2020 opposed the MTPA on the basis that abortion is ‘virtually murder’ and a ‘crime against humanity’, their objections were rejected, pointing out that ‘there is no violation of [the right to life] in any manner’. The Delhi High Court decision, then, is inconsonant with precedent and legislative intent in India.

The Supreme Court’s order, in contrast, speaks a different language. In assessing whether the termination ought to be permitted or not, the Supreme Court does not refer to the foetus. While that is certainly a position the law can take—that the foetus ought to be irrelevant in determining the permissibility of abortion—that conclusion has to be reasoned, especially in light of the earlier Supreme Court decision in Suchitra Srivastava which takes the foetus’ status as a prospective child into account as a ‘reasonable limitation’ on the right to abortion. It is therefore important for the Supreme Court in Ms X to set out a principled basis for its stance, failing which it risks contributing to doctrinal confusion on the role of the State interest in preserving the potential life of the foetus in limiting the abortion right; it remains to be seen whether this will happen when the case is finally considered on merits. On this point, instead of silence, a more helpful response would be for courts to ask, and to hold the State accountable for answering with evidence, several key questions: Is the potential life of the foetus a legitimate aim which the State can pursue? Even if it is, are restrictive abortion laws suitable in achieving the aim? Are such laws necessary to protect foetal potentiality? Going forward, the answers to these questions will be central in determining the shape of the law on abortion in India.

A Question of Consent: The Delhi High Court’s Split Verdict on the Marital Rape Exception

Today, a division bench of the High Court handed down its judgment on the constitutional challenge to the marital rape exception [“the MRE”]. Put simply, the marital rape exception states that “sexual intercourse by a man with his own wife … is not rape.” Petitioners – supported by amici – argued that the marital rape exception – which, in effect, immunises married men from being prosecuted for rape – violated Articles 14, 15(1), 19(1)(a), and 21 of the Constitution. The two-judge bench delivered a split judgment: Justice Shakder struck down the MRE as unconstitutional on all of the above grounds, while Justice Hari Shankar upheld its constitutionality.

Previously, on this blog, I have analysed the constitutional issues around the MRE in some detail. In this post, I shall argue, first, that the fundamental point of difference between the two judges is on the question of consent. Justice Shakder believes that whether in a marriage or out of it, sexual consent is paramount and inviolable. Justice Hari Shankar – although he denies it from time to time – believes that within a marriage, a woman’s consent to sex carries less weight. Secondly, I shall note that under existing Indian constitutional law, Justice Shakder is correct, and Justice Hari Shankar is wrong. Consequently, when this split judgment goes for resolution before a Full Court (or to the Supreme Court), Justice Shakder’s views ought to be upheld, and the MRE struck down.

The Opinion of Shakder J

The core of Justice Shakder’s argument can be found in paragraph 135.2 of his opinion. Examining s. 375 of the Indian Penal Code in some detail, which sets out the seven circumstances under which a sexual act counts as rape, he observes that:

A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl-child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstance)- form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. [Emphasis supplied]

As Shakder J notes, therefore, the core of the offence of rape is non-consensual sexual intercourse. The MRE creates a “firewall” that protects one class of putative perpetrators – married men – from being prosecuted for this offence, even though the ingredients of the offence are exactly the same. The question then follows: is this distinction constitutional? Shakder J holds that is not, as in essence what it conveys is that “forced sex outside marriage is ‘real rape’ and the same act within marriage is anything else but rape.” (paragraph 137.1) Thus, the MRE “with one stroke deprives nearly one-half of the population of the equal protection of laws.” (paragraph 137.1) This is because:

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman. In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman. Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. (paragraph 141)

For these reasons, Shakder J holds that the MRE fails the reasonable classification test of Article 14. He then addresses two counter-arguments: the idea of a “conjugal expectation to sex” and the “preservation of the institution of marriage.” On both issues, his response is grounded in the right to individual autonomy and consent. On the first, he notes that whatever the expectation might be (i.e., “unreasonable” denial of sex counts as a ground for divorce under Indian family law), it does not extend to an “unfettered right to sex” without consent (paragraph 146); on the second, he notes that the marital bond is itself based on the idea of choice, and mutual respect for “physical and mental autonomy” (paragraph 148); once again, therefore, a legal provision predicated upon the denial of consent cannot be saved by appeals to the institution of marriage.

This focus on choice, autonomy, and equality also leads Shakder J to hold that the MRE violates Articles 21, 15(1), and 19(1)(a) of the Constitution. In paragraph 163, he holds that “modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship.” For this reason, denial to married women the right to trigger prosecution for the violation of sexual consent infringes Articles 21; it also infringes Article 15(1), as it is discrimination based solely on marital status; and it infringes Article 19(1)(a), as “the guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.” (paragraph 166)

The Opinion of Hari Shankar J

How does the opinion of Hari Shankar J respond to these contentions? This opinion is based on two prongs. First, Hari Shankar J identifies what he believes to be a fundamental flaw in the petitioners’ logic: i.e., that all non-consensual sex is, by default, rape, and that the MRE is an impermissible departure from this default; and secondly, that when it comes to sex, the marital relationship is distinct from all other relationships, in that it carries with it a “legitimate expectation of sex.” This – according to Hari Shankar J – provides the “intelligible differentia” under Article 14, that justifies the legislative decision of treating non-consensual sexual intercourse within marriage as “not rape.”

Let us examine both steps of the argument. On the first step, Hari Shankar J tries to drive his point home by drawing an analogy with the crime of murder. Just like not every instance of taking a life is not deemed under criminal law to be “murder”, therefore – it follows – that not every act of non-consensual sex is deemed “rape”; rather, it is the legislature that decides which kind of non-consensual act is to be deemed “rape”, just as it defines when the taking of life is deemed murder. (paragraph 103)

In this context, Hari Shankar J repeatedly – and rather intemperately – accuses petitioners’ counsel, and the amici, of making arguments devoid of logic, and attempting to substitute the legal definition of “rape” for “what they feel should be the definition of rape.” If there is anything that demonstrates a complete lack of logic, however, it is Hari Shankar J’s choice of analogy. The relationship between the MRE and the offence of rape is not equivalent to the legislature defining the circumstances under which the taking of a life amounts to murder. The correct analogy – as should be immediately evident – is that of the legislature defining the offence of murder in full detail, and then adding – for example – an “MP exception” that goes “the killing of a human being by a member of parliament is not murder.” This is because – and this is the point of Shakder J’s judgment that Hari Shankar J fails to deal with in any sense – s. 375 exhaustively defines the ingredients of the offence of rape (which – as Shakder J correctly notes – involve non-consensual sex in various forms), and then exempt a class of perpetrators from prosecution on no other ground than that they belong to that class.

It is this simple elision that thus allows Hari Shankar J to dodge the issue of consent entirely, and repeatedly insist throughout his judgment that he supports consent, and indeed – incredibly – that this case is not about consent at all. As is immediately obvious, however, this case is all about consent: the entire scheme of s. 375 is designed to define non-consensual sex as rape, and then shield married men from the consequences of that legislative design.

Hari Shankar J then notes that there are a range of provisions in the IPC where the relationship between the parties matters (in a somewhat disturbingly violent analogy, he argues that a father slapping his child is not an offence, but a stranger slapping the same child is (paragraph 134)). This brings us to the second prong of his argument, which is the intelligible differentia. Hari Shankar J argues that the intelligible differential is founded upon the “unique demographics” (paragraph 104). What are these unique demographics? This comes in paragraph 113:

Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.

This idea of a “legitimate expectation of sex” comes in repeatedly through the judgment, and is the basis of Hari Shankar J’s finding that the MRE is constitutional. In paragraph 116, he notes that marriage “is the most pristine institution of mankind”, and that the “sexual aspect is but one of the many aspects” upon which the marital bond rests; in paragraph 119, he says that “sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.” In paragraph 120, he says that “introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.” In paragraph 127, he says that unlike live-in relationships, “the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond”; in paragraph 130, he says that “any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” He then adds that “it cannot even be assumed, in my view, that the perceptions of the petitioners reflect the views of the majority of Indian women.”

It is important to extract these observations in some detail, because they are characteristic of the muddled legal thinking that runs through Hari Shankar J’s opinion as a whole. Even if you take all these observations and assertions to be true (and there are many who would contest them!), what they demonstrate – at their highest – is that sex within marriage is somehow qualitatively different from sex outside marriage, because it forms an integral part of a set of reciprocal rights and obligations that constitute the valuable social institution of marriage.

But even if true, this is entirely besides the point. The only evidence that Hari Shankar J can muster up as evidence in his support is that unreasonable denial of sex can serve as grounds for divorce. That is true, as Shakder J also recognises. But there is a chasm of difference between saying – on the one hand – that the reciprocal social rights and obligations in a marriage create a ground for dissolution of that marriage if they are not discharged by either party, and saying – on the other – that they justify immunising the violation of sexual consent from being prosecuted as it normally is, outside of marriage – i.e., as rape.

Indeed, when you strip away the verbiage, what Hari Shankar J is effectively saying is that marriage not only gives the husband a legitimate expectation of sex, but the further right to violently enforce that expectation without suffering the same consequences as other people suffer. This not only flouts the rule of law, but also flouts basic logic, which appears to be particularly dear to Hari Shankar J.

A quick note on paragraph 130, which I found particularly disturbing. First, there is the assertion that a married woman who is subjected to non-consensual sex (since Hari Shankar J objects to using the word “rape”) will not feel as “outraged” as woman who is raped by a non-married person (whether that person is a stranger, a friend, or an intimate partner). This assertion has no business being in a judicial opinion. Secondly, there is the assertion that “the majority of Indian women do not share the views of the petitioners.” Whether true or not, this is entirely irrelevant, and indeed, a return of the infamous “minuscule minority” view that appeared in Koushal v Naz, was seemingly buried in Navtej Johar, but appears to have infinite lives in the halls of the Court.

It is this extraordinary reasoning that allows Hari Shankar J, to hold in paragraph 165, that:

Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent.

Once again, we see the absence of logic. It is nobody’s case that the Exception itself “obligates” a wife to consent to sex at all times. The case is that the Exception devalues a wife’s consent purely by virtue of her marital status. Hari Shankar J sets up this straw-man to knock it down in the second sentence – and then, in the third sentence, he comes up with a non-sequitur, noting that not only does the MRE not force a wife into non-consensual sex, but that it has nothing to do with consent at all! It is almost trite at this stage to point out the absence of logic: when s. 375 says that non-consensual sex is rape, and the MRE says that “except where it is a married man”, what the section – read as a whole – says is that non-consensual sex between a married man and a wife is not rape. Repeatedly – and belligerently – stating that all this has nothing to do with consent does not make it true.

The intellectual dodge at the heart of the judgment is finally laid bare in paragraph 169, where Hari Shankar J notes, by way of conclusion, that:

…the legitimate conjugal expectations of the man, as the husband of the woman and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis-à-vis all other relationships between man and woman, and all other legitimate considerations to which I have already referred, and which justify extending, to sexual intercourse and sexual acts within marriage a treatment different from such acts committed outside the marital sphere.

For the reasons I have explained in some detail, the dodge is simple: it is not enough for Hari Shankar J to show that sex within a marriage is in some way “different” from sex outside of marriage. He has to show that it is different in such a way that justifies diluting a married woman’s consent to sex. He does not show this, because he – incorrectly – attempts to argue that the entire case is not about consent in the first place. And the only way he can show that is by ignoring the actual text of s. 375 altogether – the text that is the starting point of Shakder J’s judgment – and which makes clear that consent is baked into the very ingredients of the offence of rape.

Endnotes

Having deconstructed the fundamental flaws of law – and of logic – that constitute Hari Shankar J’s opinion, it should be obvious that the opinion is unsustainable. In 2022, Indian constitutional law does not support the dilution of sexual consent based on marital status. One does not need to look too far for this: the issue is considered squarely in the Puttaswamy judgment, where Chandrachud J’s plurality opinion is explicit on this point, while many the other judgments make it clear the decisional autonomy is a fundamental facet of the right to privacy, and is not lost or in any other way compromised through social institutions such as marriage. Decisional autonomy within the marriage was also the fundamental basis upon which adultery was decriminalised in Joseph Shine; and sexual autonomy was at the core of Navtej Johar. It is – thankfully – too late in the day to go back on this rather fundamental precept.

Three final points. First, I have not in this post analysed all parts of the two opinions. For example, the two judges differ on whether striking down the MRE would lead to the creation of a new offence. I have analysed this issue in some detail in my previous post, and interested readers may refer to that.

Secondly, as this post shows, I believe that Shakder J’s judgment is opinion, and ought to be upheld on appeal. However, I also believe that the appellate forum needs to do more than that. I believe – and I say this with due consideration – that parts of Hari Shankar J’s opinion have no place in a jurisprudence that is formally committed to the basic idea of individual autonomy, dignity, privacy, and equal concern and respect. These include, for example, the frankly repulsive statement – that occurs on more than one occasion – that a married woman who is raped will “feel” less outraged than an unmarried woman who is raped. Examples can be multiplied; and when this judgment goes on appeal, the least that can be done is a formal expunging of these observations from the record.

And finally, this judgment shows – if anything does – the often Janus-faced character of the courts. We have two opinions – delivered in the same case – that, like ships in the night, sail past each other without even the chance of a conversation, because their premises are so very different. One opinion sees the task of constitutionalism to be interrogating power differences and breaking down social hierarchies, in order to achieve genuine substantive equality and freedom. The other opinion takes upon itself the task of defending and entrenching those hierarchies. I think we don’t see the first face of the courts often enough; but when we do – as in Shakder J’s opinion – it’s a powerful reminder of what constitutionalism, at its best, can be – and do.

---

[Disclaimer: The present writer was involved in the initial drafting and hearing of the petitions challenging the MRE. He has not been involved in the case since 2019.]

Guest Post: Decisional Autonomy and Group Privacy – on the Karnataka High Court’s Hijab Judgment

[This is a guest post by Shreyas Alevoor.]

---

The ongoing Hijab controversy raises interesting questions about the limits of expression and privacy. The Karnataka High Court’s judgement begins by recognizing that one’s attire is an aspect of decisional autonomy and privacy, as set out in the Supreme Court’s judgement in KS Puttaswamy vs. Union of India. However, it then goes on to hold that the right to privacy is not of much significance in this matter [pg. 99], as a “substantive right [of privacy] metamorphizes into a kind of derivative rights in [qualified public] spaces” [pg. 100].

How the High Court chose to (not)engage with the privacy question has been discussed previously on this blog, but I want to make a few observations here. In Part I of this post, I argue that the High Court’s judgement is premised on an incorrect understanding of decisional autonomy as a facet of privacy. In Part II, I argue that Puttaswamy recognizes claims of privacy by groups, and such a claim can be successfully used as an alternative to the Essential Religious Practices (ERP) test.  

Decisional autonomy

Privacy is a recognition of the sovereignty of the individual. Decisional autonomy then becomes an exercise of sovereignty by the individual against “legislative or popular” morality. In Puttaswamy, Chandrachud, J.’s majority opinion defines it as “intimate personal choices, as well as choices expressed in public such as faith and modes of dress”, and notes that “personal choices governing a way of life are intrinsic to privacy”. It follows that decisional autonomy (as an aspect of dignity) is valuable only if it allows for the full expression of one’s personality, and in all spheres of an individual’s life and not merely the personal. Furthermore, it is crucial to note that the reasons for wearing a Hijab can range anywhere on a spectrum between choice and coercion, with it being virtually impossible to determine where on the spectrum a particular individual’s wearing of the Hijab lies.

Puttaswamy recognizes only very limited grounds for limiting the right to privacy – reasonableness under Art. 14, grounds provided under Art. 19, substantive due process under Art. 21, and compelling state interest. In the present judgement, all of this is brushed under the carpet, with the reasoning that the right to privacy is not engaged sufficiently. The word ‘autonomy’ appears only five times in the operative part of the judgement, and is almost always qualified by the statement “subject to reasonable regulation”. However, the only hint of a compelling state interest found is that of maintaining positive discipline and decorum within the classroom [pg. 105].

The High Court then goes on to defer to the wisdom of the Executive [pg. 121], and holds that the Government Order had proven a loose nexus between the “wearing of Hijab and the ‘law and order’ situation” [pg. 119], contrary to the requirement of proving a rational nexus.

In my previous post, I had argued that the challenge in this case is to balance freedom of expression and decisional autonomy on one hand, and the larger public interest of protecting public order and morality on the other; and on balance, the former should prevail over the latter. Here, I borrow from John Dewey and propose an alternative argument: that as social beings, the good of the individual (i.e., privacy) does not have to necessarily conflict with larger public interests. Dewey claims that rights should be valued based on “the contribution they make to the welfare of the community”, or else, individual rights in most cases would be trumped by the social interests. Indeed, there exists a social value in protecting the decisional autonomy to express oneself – that of promoting secular and democratic values – which is explicitly recognized in Nariman, J.’s concurring opinion in Puttuswamy:

82. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed.

As also by the majority in Puttaswamy [pg. 263]:

Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.

Reading group privacy into Puttaswamy

Without delving into its nuances, group privacy at its simplest not only seeks to protect the personal privacies of its individual members (derivative privacy), but also the privacy of a group as a group which shares common visions and goals (inferential or strong privacy).

There is reason to believe that Puttaswamy recognizes claims of privacy by groups.

The criticism of the Suresh Koushal judgement by the majority in Puttaswamy provides an excellent starting point. It considers how a general right to privacy intersects with gender and sexual orientation to create a “private space which protects elements crucial to gender identity” [pp. 169]. Here, we must also consider the implications of privacy intersecting with religious identity (which is a personal identity characteristic like gender). These implications are briefly considered in Bobde and Chelameswar, JJ.’s concurring opinions. Importantly for our purposes, the majority also held that the LGTBT community cannot be denied the right to privacy merely because it is a “minuscule fraction of country’s population” [pp. 126].

Bobde, J.’s concurring opinion notes that privacy “constitutes the springboard for the exercise of freedoms” under Art. 19:

31. … A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one’s choice and those with common objectives.

33. The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same.

43. Exercising privacy is the signaling of one’s intent to these specified others – whether they are one’s coparticipants or simply one’s audience – as well as to society at large, to claim and exercise the right.

From Chelameswar, J.’s concurring opinion:

39. The choice of appearance and apparel are also aspects of the rights of privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Art. 25.

Consider then the following line of argument:

1. Decisional autonomy as a facet of privacy enables one to “preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices” against majoritarian diktats.
2. The general right to privacy intersects with deep personal identity characteristics (like gender and religion) to create a space where elements crucial to that identity are protected.
3. The right to privacy includes right to form groups (and also exclude people from the group), which have the right to preserve and promote their symbols of identity – language, culture, and forms of appearance and apparel in both private and public spaces.
4. The right to privacy cannot be denied to a group merely because they are “minuscule”.

I would suggest that this is a better alternative to the ERP test. Among other things, the ERP test denies agency to smaller sects or dissenting groups within a religion which may not follow the practices of the majority. In the present case, the High Court held that the claimants had failed to meet the ‘threshold of pleadings and proof’, as they had not shown how long the petitioners had worn the Hijab; and if Islam would “lose its glory and cease to be a religion” if one does not wear the Hijab – without considering the possibility that there may be a group within Islam which deems the wearing of Hijab an essential to their identity. This is especially problematic in a diverse country like India, where cultural and religious practices differ across lines of class, caste and region.

Conclusion

The silver lining in the High Court’s order in the Hijab controversy is that it lays bare the problems with the ERP test. It also shows that cases involving questions of identity treated as mere thought experiments. This should be one of them good problems for the Supreme Court – it has an opportunity to update its discrimination, free speech and privacy jurisprudence, and hopefully, do away with the ERP test entirely.

Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself. In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?“

It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education – with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.” The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam, and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter, and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab. Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion. This is particularly ironic when we think of the right as the “right to religious freedom”; the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate. The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes:

1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same. This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”. Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society; what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect. And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere. On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.” But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School, where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity; and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all. On page 105, the Court notes:

An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.” It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:

It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach is more consistent with our Constitution.

The Marital Rape Exception Case: Two Constitutional Issues

Oral arguments in the constitutional challenge to the exception to Section 375 of the Indian Penal Code [“the marital rape exception”] are presently being heard before a two-judge bench of the High Court of Delhi. In this post, I will focus on two constitutional questions that have emerged during the course of the hearing: first, is “marriage” – or “marital status” – a valid classification for the determining when sexual assault constitutes rape or not; and secondly, will striking down the marital rape exception amount to “creating a new criminal offence”?

Marital Status as an Unreasonable Classification

To avoid getting sidetracked by superfluous arguments, let us first clarify what the marital rape exception does not say. The marital rape exception [“MRE”] does not say that sexual assault within a marriage will not be an offence at all. Such acts will continue to be punished under other criminal law provisions (for example, Section 498A, or the offence of causing grievous hurt). What the MRE does say is that sexual assault within a marriage is legally not rape, and will not be punished as rape.

Highlighting this distinction is essential, because it appears to have become the basis of an attempted constitutional defence of the MRE. Reconstructing the argument from various bits and pieces, the defence appears to be as follows:

1. As a basic principle, consent to sex is fundamental and paramount.
2. That said, marriage is an institution that brings with it certain reciprocal rights and obligations, one of which is a “legal right to expect reasonable sexual relations” (I use this framing only because it is the exact question that was put Hari Shankar J to the amicus curae, Mr. Rajshekhar Rao, during arguments).
3. Consequently, it is constitutionally justifiable to use marital status as the basis for a graded scale of punishment. While it would not be constitutional to let marital rape go completely unpunished, it is valid for the legislature to punish it differently (and to a lesser degree), given the “legal right to expect reasonable sexual relations” within a marriage.

This argument rests upon the premise that the otherwise sacrosanct right to consent is somehow conditioned within a marriage by the “right to expect reasonable sexual relations”, and may therefore be treated differently, as long as it is not erased altogether. This is the legal version of eating your cake and having it too: “yes, consent is important, but also, rape within marriage is not exactly rape.”

In responding to this argument, it is sufficient to state that as of 2022, and as a matter of law, the proposition that there is a “legal right to expect reasonable sexual relations”, that can in someway qualify or diminish the rule of absolute consent, is quite simply incorrect. To understand why, one must examine a seemingly unrelated branch of law: family law, and – in particular – section 9 of the Hindu Marriage Act. Titled “the restitution of conjugal rights”, this section provides a remedy for a situation in which one spouse has “unreasonably” withdrawn themselves from the company of the other.

The relevance of the restitution of conjugal rights to this case is as follows: it is based on the precise logic that underpinned Hari Shankar J’s question to the amicus. The logic of the restitution of conjugal rights (the provision was originally imported from the 1865 Matrimonial Causes Act in England) is that marriage brings with it a legally enforceable right to “conjugal” (i.e., including sexual) relation, breach of which can be remedied by filing a lawsuit. While, over the years, the actual operation of this provision has been rendered largely toothless (it now serves as a springboard for filing a divorce claim, rather than a trigger for forcing an unwilling spouse into the company of the other), its underlying premise remains constant.

Indeed, this logic was recognised by the Andhra Pradesh High Court in the famous case of T. Sareetha v Venkatasubbaiah. In that case, Justice Chaudary struck down the provision precisely because – in his view – it “transferred the decision of whether or not to have sexual intercourse from the individual to the State.” In particular:

“Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

The argument, therefore, that marital status in any way affected the issue of consent to sex was squarely rejected, and the individual – in this case, the woman’s – right to decisional privacy and dignity was upheld. As is well-known, a year later, Sareetha was overruled by a three-judge bench of the Supreme Court. However, the logic of Sareetha has since been explicitly vindicated in the nine-judge-bench privacy judgment (Puttaswamy v Union of India). A plurality in Puttaswamy specifically noted that:

Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.

The teaching of Puttaswamy is therefore that far from being diminished in the “domestic sphere”, the right to privacy and decisional autonomy of women attains an even higher salience than it might have in the public sphere. It therefore follows that after Puttaswamy, marital status cannot – by definition – be invoked as a ground to condition or in any way qualify the absolute character of privacy as decisional autonomy (and, thereby, the right to consent). Reading Sareetha and Puttaswamy together, we reach the inescapable conclusion that – under Indian constitutional law – any argument that there exists a “legal right to reasonable sexual relations” which qualifies the character of consent, is untenable. And once this argument falls away, the MRE no longer has a leg to stand on: marital status is entirely irrelevant to the question of forced sex being rape, whether within a marriage or out of it.

This conclusion is buttressed by the judgment of the Supreme Court in Joseph Shine v Union of India (the “adultery case”). In justifying the decision to strike down the criminal prohibition upon adultery, Chandrachud J specifically noted that:

“… Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage … marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned …the enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.“

It should be noted that these observations are squarely on point, and clarify that – as held in Sareetha and in Puttaswamy – marital status cannot be a ground to differentiate between the nature and character of the right to consent. And if marital status cannot be a ground for that differentiation, the MRE must fall, as that is the distinction upon which it is based.

Would Striking Down the MRE Create a New Offence?

In the previous section, it was established that the MRE violates Articles 14 and 21. Ordinarily, this should be all the reason that is needed to strike it down. A knotty question, however, presents itself: is a Court authorised to strike down a law if it results in the creation of a new criminal offence?

Would striking down the MRE result in the expansion of the scope of criminal law? In a trivial way, yes: hitherto, married men could not be prosecuted for rape. Now they can. A class of individuals who enjoyed legal immunity from criminal prosecution for a specific offence have now lost it. In that very literal sense, yes, the scope of criminal law has been expanded.

However, it is important to parse this further. The MRE exists in criminal law as a specific immunity, for a specific class of people, from being prosecuted for a specific offence. The ingredients of the offence (in this case, rape) have been set out in the substantive part of Section 375 of the IPC. The MRE does not in any way affect that. The MRE does not say, for instance, that “there is always deemed consent to sex within a marriage” (although it could have). The MRE simply decrees that although all the legal elements of rape have been satisfied, if a married man has committed the offence, “it is not rape”. The MRE is legal fiction in its truest sense: it simply takes a class of people outside the ambit of a defined offence, for no reason other than the fact that they belong to that class.

Consequently, all that striking down the MRE will do is to remove the immunity from prosecution for rape from married men (an immunity that, for the reasons discussed above, is founded upon unconstitutional reasons). To take a parallel example, imagine a second exception tacked on to Section 375: “provided that, sexual intercourse by a man who is a registered member of a political party, is not rape.” If this exception is challenged before the Court, can anyone be heard to say that the Court cannot strike it down because to do so “would be to create a new offence”? I believe not; and if the arguments in the previous section are correct, then there is no material difference here between “member of a political party” and “married man”.

It should further be noted that – for the reasons advanced above – striking down the MRE is not going to open up a parade of horribles where every criminal law can be challenged on constitutional grounds, starting with the rape law itself, on the ground that it is not gender neutral and therefore violates the right to equality. There are, of course, many arguments for why rape law should be made gender-netural – and indeed, how it should be made gender neutral, in a way that reflects the realities of patriarchy and institutional power. However, to change rape law in a way that makes it gender neutral would actually require the Court to adjudicate upon questions of legal policy, and – ultimately – to legislate. There is an entire set of legislative models for accomplishing this outcome, and it is not for the Court to fashion or craft legislative models. However, none of these concerns apply to the question of striking down the MRE: the removal of an arbitrary immunity based on marital status has no equivalence with refashioning the criminal law from one understanding of gender and structures of power, to another.

It should be further noted that this does not also mean that every criminal law immunity – or mitigation of punishment – will become vulnerable to challenge, and a marauding judiciary will then jump upon the opportunity to cut back everyone’s criminal law rights. Suppose, for example, that there is a law that says that in a case of damage to property, the fact that an accused was acting upon a genuine belief that she was protecting the environment, will be a mitigating factor in sentencing. A court striking down the MRE will not serve as a justification for striking down this hypothetical law: to do so, it will have to be shown that the political choice that the legislature has made to treat environmentally-motivated crimes in a less serious way, is equivalent to the gender-discriminatory decision that marriage makes consent less salient.

Finally, a quick note: the Supreme Court has already done this. In Independent Thought, the MRE was removed in case the wife was between fifteen and eighteen years of age. This is not to say that Independent Thought controls the outcome in this case; it is, however, precedent for the proposition that Courts can – and should – strike down an arbitrary immunity of this kind.

---

Disclosure: I was involved with the drafting of one of the petitions before the High Court in 2017. I have not been formally involved with the case since 2019.

Guest Post: A Critique of the Uttar Pradesh Population Control Bill

[This is a guest post by Samira Mathias and Shivani Vij.]

---

In an effort to control population growth, the Indian state of Uttar Pradesh has introduced the draft Population (Control, Stabilization & Welfare) Bill 2021, in an undoubtedly rushed manner. The poorly drafted bill, marred by numerous provisions which are violative of fundamental rights, is eerily reminiscent of the 1976 sterilization programme initiated by the then Congress government. Though the Bill does not mandate sterilizations, it incentivizes them with monetary benefits, and further corrodes reproductive autonomy by disincentivizing departures from the prescribed two-child norm through automatic ineligibility for government benefits. Pertinently, the Bill targets and has a disproportionate impact on the poor (to be discussed below).

By hastily resorting to harsher and unscientific methods of population control, the state is pre-determining a course of action for all people, instead of treating them as rational agents capable of making their own choices. Such a policy also amounts to an abdication of the state’s positive duties in facilitating the full enjoyment of human rights.

(i)  Violation of Reproductive Choice & Consent

The Bill purportedly aims to address population explosion by incentivizing compliance with the two-child norm, and disincentivizing departures. These disincentives include inter alia, denial of access to government welfare schemes and subsidies (Sec 12), limiting ration cards to up to four (units) (Sec 8(j)), ineligibility to contest elections (Sec 9), and bars on applying for government jobs (Sec 10) or promotions in government services (Sec 11). It further provides rewards for undergoing voluntary sterilization after two children, in the form of monetary assistance towards construction of houses, rebate for utilities, additional maternity and paternity benefits etc. (Sec 6) Moreover, specifically for individuals living Below the Poverty Line (BPL), having one child and undergoing voluntary sterilization draws promises of monetary benefits (Sec 7). 

The introduction of this system of incentives and disincentives obfuscates true choice, by exploiting the economic vulnerabilities and career aspirations of people. A more holistic assessment of consent needs to be conducted in light of the theory of adaptive preferences (Martha Nussbaum). The theory posits that in environments of deprivation or limited choices, individuals unconsciously change their preferences to reflect what they think is feasible. Thus, these individuals are not rendering free consent, but are merely expressing internalized inequalities of access to resources. The Bill exploits these inequalities in socio-economic status, disproportionately targeting families engaged in governmental service or living below the poverty line (BPL). The series of disincentives prescribed for violations of the norm, especially the ineligibility to avail of rations, and the disqualifications from appointments and promotions in government posts may prompt women to undergo abortions in order to avoid what are in effect penalties for having a third child. Fears of inadvertently violating the norm could motivate both men and women to undergo sterilizing or contraceptive procedures that are incompatible with their health or beliefs. The Bill also promises Rs 80,000 to a BPL family if they have a single male child and then undergo sterilization, or 1,00,000 for doing the same after the birth of a girl. These figures are more than twice the annual income fixed for a BPL family in Uttar Pradesh to receive rations.   Thus, under the guise of ‘voluntary’ sterilizations, the Bill through its economic penalties, in effect leaves no choice to families struggling to make ends meet or dependent on government supports to survive. This is a dangerous and insidious erosion of bodily autonomy, raising a serious constitutional challenge to Article 21 rights.

Sexual and reproductive autonomy are recognized as quintessential facets of privacy and thus the fundamental right to life guaranteed under Article 21 of the Constitution (KS Puttaswamy v. Union of India). Not only does the Bill restrict reproductive autonomy, but it does so in the most invasive way possible. While the State is empowered to impose limitations on privacy, it must do so in compliance with the four-part test laid down by the Supreme Court. Thus, the policy should pursue a legitimate aim, there should be a rational nexus between the restriction and the aim, it should be the least restrictive measure and, should strike a balance between the competing interests.

No evidence has been provided by the State for the need for the more restrictive measures of sterilization and a two-child norm, or even proof of their effectiveness in comparison to less restrictive measures such as providing for family planning methods, in order to achieve the aim of ‘population control’. Indeed, the Bill concedes to the existence of such less restrictive measures in Chapter V through an affirmation of the state’s duties to educate, encourage and support families with family planning.   The state should be focusing entirely on its positive role in promoting reproductive choices in line with the autonomy of persons, instead of eroding this autonomy by dictating choices for people.

Moreover, the Bill creates a peculiar impact on personal laws which permit polygamous marriages. Section 19 of the Bill provides for each woman in a polygamous marriage to have two children but allows the man in the marriage to have only two children in total across all his spousal relationships (Sec 19). If the husband violates his two-child quota, he will be subjected to the disbenefits prescribed for violators, but his wives and children will not be so penalized if each of them are compliant with the norm (Sec 18). Yet this simultaneously exists as a potential source of marital discord and indirectly restricts the reproductive rights of women in polygamous marriages Furthermore, there is potential for great confusion in the application of these sections. For instance, section 5 of the Bill promises benefits to single children on the basis of the status of the couple’s compliance with the norms (Sec 5). Yet, the provisions on polygamous marriages ascribe different statuses to both persons in the couple.

(ii) Attack on the right to livelihood & other constitutional rights

Another disproportionate impact is found on the rights to health and food of the poor, who depend on daily rations to survive. By providing for only four units of ration cards to seek compliance with its two-child norm (Sec 8(j)), the State violates these socio-economic rights which the Apex Court of India in Bandhua Mukti Morcha v. Union of India and PUCL v. Union of India settled as falling under the Directive Principles of State Policy and Art 21 rights of individuals. The National Food Security Act 2013, the statute enabling the provision of ration cards to the poor, was legislated with this very focus on ensuring a life with dignity by securing the right to food and basic necessities. Denying access to rations thus breaches Constitutional guarantees. By causing a disparate impact on the well-being of an economically struggling section of the population, the Bill denies the equal protection guarantee under Article 14 of the Constitution.

Worryingly, children’s rights to equality under Article 14 are also implicated. Single children are promised free education, healthcare, and insurance, as well as scholarships and preferences in admissions to higher educational institutions and jobs (Sec 5). This irrationally penalizes children for having siblings and represents an abdication of the state’s responsibility to look after the rights and well-being of all children.

Section 8(k) of the Bill further confers on the government the following power to enforce “Other disincentives as may be prescribed”. This is overly broad language, vesting the government with sweeping powers to revoke or disqualify persons from welfare schemes if they breach the two-child norm. There are no safeguards for how these disincentives can be determined and prescribed, and no provisions mandating that there be a rational nexus between the disincentive and procreation beyond the norm.

Indeed, a rational nexus is already absent within the prescribed disincentives. Persons who have more than two children after the Act comes into effect are barred from contesting government jobs and local body elections (Secs 9 & 10). The number of children a person has is in no way a reflection of their capacity and competence to fulfil these roles. Penalizing them for having more than two children automatically denigrates their family choices.

The Bill further mandates that existing local body electives and government employees undertake to have no more children (Sec 9(2) & 10(2)). There is no reason why the continuance of a government job should be contingent on the size of a family. The proposed law is effectively economically coercing couples into sterilizations and abortions.

(iii) Attacks on the integrity and dignity of persons: a means to an end

Individual dignity has been recognized as attainable only where liberty is seen as inhering in each individual, and equality as subsisting between all persons (para 189, Dr. D.Y. Chandrachud J., Indian Young Lawyers Association and Ors. v State of Kerala and Ors.). The state’s attempts to instrumentalize women’s reproductive capacities by fixing a cap on the number of children they can have, simultaneously reduces their human right to a state tool, while degrading women and children to ‘means’ to policy ends.

Further, instead of seeking to change regressive attitudes towards children on the basis of gender, the Bill monetizes them – offering couples living below the poverty line one lakh rupees if they have single child who is a girl, and eighty thousand rupees if the child is a boy (Sec 7).

The Bill also encourages a commodifying attitude towards children, through its approach to disabilities. Disabled children are not counted for the purposes of determining whether couples have breached the two-child norm (Sec 15). The Bill also enjoins the government to provide for reversing sterilizations, in cases where a child subsequently becomes permanently disabled (Sec 23(m)). These provisions place the worth of all children on their abilities and treat disabled children like inferior persons that do not discharge a quota. These are deeply disturbing attitudes that should not receive such implicit encouragement from the state.

Finally, the Bill’s choice of language where a ‘two child norm’ is defined as the ‘ideal size’ of a family implicitly belittles the choices of couples departing from such a norm. The Bill in effect promotes a homogenization of family structures, attacking the right of couples to make deeply personal choices about their family life.

(iv) Social context

The Bill has a disproportionate impact on the constitutional rights and dignity of women by ignoring the social context of childbirth in India and the fact that women may not have any real choice in family planning. Notable academician Professor Sandra Fredman (in her book Comparative Human Rights) has argued that any legislation affecting the reproductive autonomy of women must take into account the social and cultural dimensions around it. This is so because decisions regarding child-bearing and child-rearing are influenced by numerous social factors besides the choice of an individual, such as childcare leave, adequacy of personal resources etc. One such factor in India, is the pressure exerted on a woman to continue to have children until a male child is born. The desire for a male child has been and continues to be one of the primary causes of female infanticide and/ or feticide in many states of the country. In addition to this, marital rape, which is still not a punishable offence in India, also severely constrains choices of women and is one of the reasons for unplanned pregnancies. Amidst these peculiar social and cultural factors that surround childbirth, imposing a two-child norm and prescribing disincentives would mean that a man who forces his wife to have more children penalizes himself as well as his wife under the new law. Thus, the Bill, once implemented, would restrict the fundamental rights of women because they had more than the prescribed number of children – a decision which was never entirely within their control. The restrictions on their bodily autonomy, reproductive choice and life under Article 21 would thus be curtailed disproportionately to the legitimate aim of population control. The proposed law must therefore be viewed through the special lens of impacts on the constitutional rights of women in particular.

To steer clear of constitutional issues, the State must endeavour to restrict the right to reproductive autonomy with the least restrictive means. This can be done by empowering citizens to make responsible choices about family sizes by providing resources for better education and access to family planning for all households. This would enable informed choices about childbirth and promote attitudes where children are valued in and of themselves. The State should also align the initiatives on prevention of female infanticide and feticide with its policy on population control and address childbirth in the context of marital rape, which is not an offence under the Indian Penal Code. It is only when the focus shifts from coerced sterilizations and compliance with a strict two-child norm to the exercise of informed choice, that the State will be able to implement a sustainable policy of matching population numbers with resources within the ambit of permissible restrictions to fundamental rights.

Conclusion

In sum, the UP Draft Population Bill is profoundly problematic. It is constitutionally objectionable in the ways that it erodes privacy and reproductive autonomy, treats socio-economic rights like policy tools, and confers overly broad powers on the government. It is also incompatible with other existing laws, and disproportionately impacts already vulnerable sections of society, while constructing a system of incentives and disincentives devoid of rational links to policy goals.

 The Bill is invasive and denigrating of the choices of people, treating people as means to ends, and perpetuating regressive and damaging attitudes to women, children and the disabled. The state should be focusing on its positive duties, looking on the citizenry as partners in constructing a sustainable future. Sustainability, after all, depends on long-sighted, rational and cohesive solutions. A fragmented approach such as this fails to zero in on long term solutions – educating the people, equipping them to make responsible choices, promoting better attitudes towards the family and the human person, empowering the vulnerable, and advocating for comprehensive solutions to resource utilization that involve scientifically backed, environmentally sustainable choices as to use of resources. It is the need of the hour to take this ‘leap of reason’ from (forced) compliance with a restrictive policy to informed choice that will not only respect constitutional and moral rights, but be more sustainable for the future.

Guest Post: The Abortion Petition – Some Key Questions

(This is a guest post by Gauri Pillai.)

---

This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).

The Challenge 

The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.

By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.

The Presumption of Motherhood

The Act is premised on two fundamental assumptions.

First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.

This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.

The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.

A Strand in a Gendered Web

Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.

This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.

However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.

Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.

Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.

The Remedy

The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.