Category Archives: Bodily Privacy/Integrity

Section 377 Referred to a Constitution Bench: Some Issues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: The Trans Bill and Its Discontents – II

(In this Guest Post, Vasudev Devadasan concludes his analysis of the Transgender Bill.)

In the last post (here) we defined transgender persons as individuals who experience a conflict between the ‘gender identity’ assigned to them at birth, and ‘gender identity’ they develop through the course of their lives. Thus, an individual may be designated ‘male’ or ‘female’ at birth, but over time may come to identify with the opposite sex, or even outside the male-female binary as a transgender. In NALSA v UoI (NALSA) the Supreme Court affirmed both the right of the individual to choose their own gender and the existence of a third gender (transgender). The Court also ruled that discrimination against transgender persons for failing to conform with gender stereotypes (by choosing an alternative ‘gender identity’) amounted to discrimination on the grounds of ‘sex’ and was prohibited by Articles 15 and 16 of the Constitution. Lastly the Court held that transgender persons were members of ‘backward classes’ deserving of reservations under Articles 15(4) and Articles 16(4) of the Constitution.

When making these statements the Court had the benefit of speaking in the abstract. In implementing these guarantees the government faces the task of conferring benefits on a group whose membership is based on a subjective determination of conflicting ‘gender identity’ experienced only by the individual in question. How does the government provide reservations to ‘transgender persons’ when the only way to know whom a ‘transgender person’ is, is an internal conflict experienced by the transgender person?

In this post, I examine the anti-discrimination provisions in the new Transgender Persons (Protection of Rights) Bill and explore the difficulty of securing equality and affirmative action for a group whose membership cannot be objectively determined. I also examine the current Bill’s provisions on begging and residence (prohibiting transgender persons from being separated from their families) and question whether they are in tune with the developing concept of ‘autonomy’ under the Constitution.

Non-Discrimination

The current Bill provides a procedure for the ‘Recognition of Identity of Transgender Persons’. While we discussed the shortcomings of this procedure on the last post, the rationale for having a recognition procedure is clear. Non-discrimination rights arise when citizens belong to a class or category of citizen as distinguishable from other citizens. A claim to non-discrimination will be acknowledged when a citizen can demonstrate belonging to this class or category and then show that such belonging is the “ground” for the discrimination in question. Therefore, the current Bill provides a definition of ‘transgender person’, provides a procedure to recognise a ‘transgender person’, and then Section 3 of the Bill states, “No person shall discriminate against a transgender person…” by denying education, unfair treatment in employment etc. The provision thus protects individuals who are recognised as transgenders under the scheme of the Bill.

Before moving on, two points should be noted. Firstly, the Bill does not create reservations for transgender persons in education or employment. While the National Commission for Backward Classes did formally recommend that transgender persons be included in the category ‘Other Backward Class’, and while these recommendations are ordinarily binding on the Government, the current Bill does not create reservations for transgender persons. Secondly, the Bill does not define the term “discrimination”. By not defining “discrimination” the Bill is silent on how and when the protection guaranteed by Section 3 would be violated. In contrast, the 2014 Rajya Sabha Bill defined discrimination as “any distinction, exclusion or restriction on the basis of gender identity and expression which [restricts the exercise of human rights] on an equal basis with others.” Just as the Supreme Court did in NALSA, this definition states that where a person is treated differently because of their ‘gender identity or expression’, and such different treatment affects their enjoyment of rights, discrimination is deemed to have occurred.

The problem facing the government is that by creating a recognition procedure that the State controls, they have severely restricted the individual’s ability to self-identity with the gender of their choice (a choice the Court in NALSA held to be protected by Article 21). There are two seemingly conflicting goals here: (a) to fix and regulate the categories of sex (male, female and transgender), and (b) to allow individuals to freely move between these categories by choosing their own ‘gender identity’. The current Bill seeks to filter the subjectivity so essential to the transgender identity through a lens of legal certainty. The question is therefore whether the actual or potential mobility of ‘gender’ that NALSA and the very definition of transgender espouse can be accommodated within a regulatory non-discrimination framework.

Victoria and New South Wales for example dispense with the requirement of having a fixed legal identity when determining whether transgender persons have been discriminated against. The Victorian legislation (the Equal Opportunity Act) prohibits discrimination on the grounds of ‘gender identity’ which is defined as:

…the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):

  1. by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
  2. by living, or seeking to live, as a member of the other sex.

Thus, what matters is not whether the individual is recognised in law as a transgender person. Rather, whether they are perceived by society as being a transgender person. Thus, rather than the law having to recognise an immutable characteristic of ‘transgender’ which both violates the principle of self-identification and aims to ‘normalise’ transgender persons by creating a fixed gender/legal identity, discrimination occurs when an individual is discriminated against because they are perceived to be transgender, irrespective of whether they are actual transgender. For example, if an individual is denied employment on the ground that they are perceived to be transgender, a valid claim for discrimination can be made against the employer. Sharpe terms this the “interplay of performance and gaze” and this provides a framework within which the law is able to comprehend the fluid nature of the transgender identity and yet protect transgender persons from discrimination. Conferring rights without requiring a fixed legal identity.

While this solution may work for non-discrimination simpliciter, it still leaves the question of affirmative action open. Where legal benefits are positively conferred on a group, the State has a legitimate interest is ensuring that the individuals who are availing of these benefits belong to the group. The current Bill creates a ‘screening committee’ which includes medical personnel to verify and recognise an individual as a transgender person. This is likely to expose individuals to unwanted and intrusive scrutiny. Thus, a balance needs to be struck between the State’s interest to curb the abuse of affirmative action benefits, and an individual’s freedom to change genders with dignity.

In Secretary, Department of Social Security v HH, Justice Brennan moves the needle away from biological verification, to a slightly more holistic test. In determining an individual’s gender, he notes, “the respondent’s psychological and social/cultural gender identity are the matters of primary importance not sex chromosomal configurations or gonadal or genital factors…” The understanding that ‘sex’ is not a determinant factor, and that “psychological, social and cultural” factors can determine gender seems to be a step in the right direction. This ties in with the Indian Supreme Court’s understanding that an individual’s psyche is part of ‘sex’ within the meaning of Articles 15 and 16. If the ‘screening committee’ that the Bill creates was to examine this, a balance maybe struck.

Provisions on Residence

The current Bill also seeks to secure the right of transgender persons to stay in their own home. Section 13(1) states that, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court…” Sub-clause 3 of the same Section goes on to note, “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall […] direct such person to be placed in a rehabilitation centre” The framework created by the Bill compels a transgender person to either continue living with their family, or be placed in a rehabilitation centre. The section makes no distinction between a ‘minor’ and an adult and creates a rather intrusive mechanism of regulation where a transgender person cannot choose where to live.

The Parliamentary Standing Committee raised concerns that the two options provided by the Bill would not guarantee protection given the realities present on the ground. Several transgender persons face significant abuse at the hands of their own families who deny them the right to self-identity with a gender of their choosing and restrict their gender expression. The nature of the rehabilitation centres is also unknown. The Committee noted that several transgender persons choose not to live at home, but rather within transgender communities where they form an alternative network of friends and family.

The Committees observations on Section 13 raise interesting constitutional questions given the understanding of ‘autonomy’ articulated in the Right to Privacy (Puttaswamy) earlier this year. At the core of the Court’s rationale in Puttaswamy was the idea that privacy protects an individual’s liberty by securing ‘dignity’ and ‘autonomy’. Privacy in the Court’s articulation is the right to determine how one should exercise the freedoms guaranteed by the Constitution. Thus, ‘autonomy’ guarantees the right of every person to make essential choices which affect the course of life.” (⁋113) The State cannot interfere with an individual’s decisions concerning several core areas that the Court describes (non-exhaustively) as including family, marriage, procreation, and even what to eat and drink.

By compelling transgender persons to either live at home or in a State run rehabilitation centre Section 13 seems to deny them the right to choose the community they wish to live in. Deciding to live at home or not would fall within an ‘essential choice’ relating to ‘family’. And by denying transgender persons the third alternative (of living within a transgender community) the case could be made that the State is interfering with their ‘autonomy’ as protected under Puttaswamy.

Provisions on Begging

Lastly, Section 19(a) of the Bill makes it an offence to ‘compel or entice a transgender person’ to commit the act of ‘begging’. Transgender persons have a well-documented history of suffering abuse at the hands of anti-vagrancy provisions such as this, simply because begging is often the only choice of income generation available. As the Standing Committee noted, transgender persons are often booked under analogous ‘begging’ provisions merely because they are present in public places. While the provision only penalises the offence of compelling a transgender person to beg, there is a thin line between criminalising an individual for begging out of their own volition and compelling another to beg, with the latter often being used against the former.

In Ram Lakhan v State, Justice Ahmed examined this distinction in the context of the implicit defences to the offence of ‘begging’. He noted that when an individual begs out of the sheer compulsion to stay alive, he is protected under the defence of ‘necessity’. Where an individual is compelled to beg he does so under threat of violence and even death and is thus protected under the defence of ‘duress’. In both cases, the individual has no real choice, and it is this involuntariness that provides the basis for both the defence of ‘necessity’ and ‘duress’ making it a “distinction without a relevant difference”. In the course of practical policing there may be obvious benefits to the distinction between a begging racket and a person begging to prevent the onset of starvation. However, the inclusion of the legislative provision as it is currently framed may be counter-productive, especially given the existence of parallel anti-begging laws.

Conclusion

We have seen how the current Bill fails to understand the core principle of ‘self-identification’ in defining a transgender person, how it struggles with the question of non-discrimination, and takes an approach to residence and begging that doesn’t appreciate the nuances of the law and its relationship with the ground realities faced by transgender persons. Creating a regulatory framework for transgender persons is undoubtedly a complex and delicate task. Certain questions, such as legal recognition for transgender persons, and the prevention of discrimination pose questions that expose the limits of law as crafted within the male-female binary. On the points of residence and begging however, the Bill seems to lack an understanding of ground realities required to upturn generations of neglect towards transgender persons. Even in their best possible forms, these provisions would require sensitive administration to have a meaningful impact in the long run. Perhaps what is most troubling is that none of the criticisms raised in this piece or the last are new. Given the excellent platform created for the government with the NALSA verdict, the original Rajya Sabha Bill and the various committee reports, the fact that the Bill remains in its current form is lamentable.

 

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Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

This week the Transgender Persons (Protection of Rights) Bill is up for vote in the Lok Sabha. The Bill has had a comparatively short but turbulent history. On the back of the National Legal Services Authority v UoI (NALSA) judgement and an Expert Committee Report by the Ministry of Social Justice and Empowerment (here) the Bill was first introduced and passed as a Private Member Bill by the Rajya Sabha in 2015. A year later however, the Ministry introduced a modified version of the Rajya Sabha Bill and referred it to committee. The Standing Committee (whose report can be found here) lambasted the Bill on several points that we will discuss here and on subsequent posts. Despite the Standing Committee’s report, the provisions of the bill have not been modified and continue to raise some troubling constitutional issues.

Beginning with the distinctions of ‘sex’ and ‘gender’, as well as ‘gender identity’ and ‘gender expression’, this post examines the interpretation of Articles 19 and 21 in NALSA. While there are a host of practical and legal ramifications of introducing such legislation, this post focuses on the constitutional issues raised by the definition of “transgender” in the current Bill and the ‘screening process’ that individuals have to undergo to secure legal recognition of their gender identity.

The constitutional framework

Before looking at the multiple definitions of “transgender” that have been used by the bills in parliament, its crucial to understand the constitutional framework created by NALSA and Article 19 and 21. (There are other judgements before and after that contribute to this framework, but the relevant principles are discussed contextually in NALSA.) Firstly, the Court distinguishes between ‘sex’ and ‘gender’. The former is determined by biological characteristics such as chromosomes and internal and external sex organs, and is assigned to individuals at birth while the latter is constituted by an individual’s own experience, developed through innate belief, upbringing, society and culture. In the case of a transgender person there is a conflict between their “gender identity” assigned to them at birth, and the one they develop through the course of their life. Secondly, while ‘gender identity’ refers to an individual’s internal experience of gender, ‘gender expression’ refers to their outward expression, as perceived by society.

It is the right of transgender persons to choose their gender identity that the Supreme Court upheld in NALSA. In the Court’s own words, “self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed by Article 21”. Additionally, the Court held that ‘gender expression’ by way of dressing, speaking, or behaving was protected under Article 19. The invocation of ‘personal autonomy’ and ‘self-expression’ is crucial, because this means that the decision of a transgender person in choosing a gender (whether male, female) is made is made by the individual, as an expression of personal choice. In fact, the Court explicitly rejected an objective ‘medical’ or ‘pathological’ standard to determine an individual’s gender (¶75) The Court also recognised that “transgender” constituted its own, standalone, gender for individuals who did not wish to associate themselves with either the male or female gender. In summary, a transgender person could choose to be recognised as either male or female based on their choice, or alternatively could choose to be recognised as transgender.

Self-identification is a promising idea in principle and may work in practice as well. For example, Argentina passed a statute that recognises an individual’s right to gender identity, and allows a person to change their sex in public records by filing an affidavit. However, this is clearly more helpful to individuals who want to change their gender identity than individuals who wish to identify outside the male-female binary. Additionally, the Court in NALSA sought both non-discrimination and affirmative action to be taken for transgenders. To secure these goals, there needs to be some practicable process or method by which the State can identify transgender persons. The crux of the matter then becomes the suitable level of State-scrutiny over an individual’s decision to identify with a gender, be it male, female, or transgender. It is important to note that the purpose of scrutiny must not reach a level so as to interfere with the individual’s autonomy to choose a gender, but sufficient to enable recognition and efficient governance.

The (current) Transgender Bill

The primary issue with the current bill stems both from its definition of the term “transgender person”, but also from the fact that to be recognised as a “transgender person”, one must undergoe a ‘screening process’ conducted by, inter alia a medical officer and a psychologist/psychiatrist. Section 2(i) defines a “transgender person” as one who is:

  • Neither wholly female nor wholly male; or
  • a combination of female or male; or
  • neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the word “and” after clause (c) makes the definition conjunctive. Thus, to fall under the definition both the sexual characteristics and the gender characteristics of the definition must be met. By adding a pathological aspect to the definition of transgender, the Bill continues to view transgender as a medical or biological anomaly outside the normal duality of male and female. As we noted earlier, sex and gender are two distinct concepts; yet the definition in the Bill conflates them, both narrowing the scope of people who fall under the Bill’s protection, and distorting the definition of a transgender person in the national discourse. The definition also runs contrary to the rationale espoused in NALSA which explicitly ruled out the use of a ‘biological test’ to determine if a person is transgender. When looked at in contrast to the definition provided by the Expert Committee Report and the Rajya Sabha Bill, the conflation of ‘sex’ and ‘gender’ is apparent. They specifically dispensed with the male/female binary, and defined “transgender person” as:

a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities…

In addition to the definition, the current Bill sets up a ‘screening procedure’. Section 4 states that a transgender person “shall have a right to self-perceived gender identity”. However, the recognition of this freely chosen gender identity is only possible when the procedures that the Bill stipulates are completed. Under Sections 5 through 7, a transgender person must approach a District Magistrate, make an application for issuing a ‘certificate of identity as a transgender person’. The application shall be evaluated by the ‘District Screening Committee’ which as noted above includes medical personnel. The inclusion of medical personnel as part of the identification procedure again hints at the legislature’s conflation of ‘sex’ and ‘gender’. By not specifying the criteria upon which the ‘Screening Committee’ shall grant or reject an application, the Bill risks the identification procedure, (a deeply personal choice originating in an individual’s internal experience of gender) morphing into an objective medical assessment. In NALSA the Court also grounded the principle of self-identification in an individual’s dignity. The Bill runs the risk of violating this principle by subjecting transgender persons to unnecessary medical scrutiny.

The Bill also makes the State (through the ‘Screening Committee’), as opposed to the individual, the final arbiter on an individual’s gender identity. Under the Bill, the Screening Committee acts as a gatekeeper to an individual being able to fully experience their self-perceived gender identity in society. This runs against the rights of ‘self-expression’ and ‘personal autonomy’ that Article 19 and 21 confer on citizens. As ‘gender expression’ is protected under Article 19(1) and the Supreme Court has recognised that individuals have a ‘positive right to make decisions about their life’ under Article 21 the constitutional validity of the ‘Screening Committee’ will certainly raise some constitutional questions as it poses a restriction on the legal recognition of an individual’s gender identity.

Lastly, Section 7 allows the District Magistrate to grant a “certificate of identity as [a] transgender person…” seeming to negate the possibility that a transgender person may choose to identify as a male or female. At its core, the idea self-identification would allow a transgender person to choose to identify with either the male, female, or transgender identity. Section 7 seems to relegate transgender persons as explicitly and eternally outside the male female binary that Indian society deems normal.

Conclusion

The current version of the Bill has received a lot of criticism on a wide range of issues. Since its inception it has seen the loss of several prominent aspects including exclusive courts for transgenders, reservation in educational institutions and incentives to the private sector to employ transgender persons. While these are notable lapses, far more troubling is that the Bill seems to misunderstand the very individuals it seeks to protect. By conflating the concepts of ‘sex’ and ‘gender’, and imposing an opaque recognition procedure, the Bill does little to uphold the core principle of self-identification and dignity as articulated in Article 19 and 21.

 

 

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The Supreme Court’s Right to Privacy Judgment – IV: Privacy, Informational Self-Determination, and the Idea of Consent

In our discussion of the Supreme Court’s judgment in Puttaswamy, so far, one common thread is emerging: the individual is at the heart of the Court’s understanding of the right to privacy. We saw this in the Court’s refusal to frame privacy in spatial or relational terms, in the plurality’s acknowledgment of the feminist critique of privacy, and in the judgment’s resurrection of Justice Subba Rao’s dissenting opinion in Kharak Singh in its discussion of privacy and the human body. In this essay, I shall focus on the second aspect of privacy outlined in Puttaswamy – privacy as informational self-determination – and examine how the judgment’s overarching concern with the individual translates into how the separate opinions frame and understand the right to informational self-determination.

In Puttaswamy, informational self-determination was discussed in the judgments of Nariman and Kaul JJ, and in the plurality opinion of Chandrachud J. Nariman J. held that “informational privacy… does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.” (para 81) Kaul J. observed that “an aspect of privacy [is] the right to control dissemination of personal information. The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations. It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it.” (para 53) And in the plurality, Justice Chandrachud noted that “informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” (para 142) Later in his judgment, he discussed the issues raised by aggregation of data from separate silos, that, when combined, provided observers with a 360-degree view of an individual’s life (paras 173 and 174), and also observed that “apart from safeguarding privacy, data protection regimes seek to protect the autonomy of the individual. This is evident from the emphasis in the European data protection regime on the centrality of consent. Related to the issue of consent is the requirement of transparency which requires a disclosure by the data recipient of information pertaining to data transfer and use.” (para 177)

The issue of informational self-determination – and the allied issue of data protection – will undoubtedly have a crucial impact on the adjudication of the Aadhaar challenge, from which the Puttaswamy reference arose. Towards the end of his judgment, Justice Chandrachud acknowledged that the issue of data protection was presently before the government-appointed Shrikrishna Committee, which had been tasked with drafting an appropriate bill. In the days to come, there will undoubtedly be rigorous debate on the Committee’s work, and the issue of informational self-determination will be at the fore when the Aadhaar challenge is heard in November. Consequently, in this essay, my intention is not to go too deep into the mechanics of these issues. What constitutes “personal data”, what kind of information does an individual have the right to control and to what extent,and  does an individual have a stronger right to control some aspects of her personal data and a weaker right over others – all of this remains to be litigated in concrete factual situations. It was not for this nine-judge bench, sitting in referral, to address these questions in the abstract – as indeed it has not.

What I do want to focus on here, however, is the consensus between all the judgments on one basic principle: that what is central to informational self-determination is the principle of informed consent. Justice Nariman framed it as a question of “unauthorised” use of personal information. Justice Kaul insisted that a person “know” what his data is being used for, and be able to “correct and amend” that use. Justice Chandrachud explicitly referred to European principles of data protection, formulating it as a question of protecting individual “autonomy” (as we have seen, autonomy is one of the foundational concepts underlying the plurality judgment). Importantly, “transparency” – that is, disclosure and transparency about the use of personal data, which is a question of accountability – appeared in the Justice Chandrachud’s plurality opinion as a “related issue”, after an express observation about the centrality of consent. In other words, principles of transparency, disclosure and accountability cannot substitute the basic principle of informed consent, although they can supplement it. The point was put in simple, straightforward and explicit terms by Justice Kaul, who stated the principle in so many words:

“The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed.” (para 70)

Readers will note that while in the first part of the sentence, Justice Kaul focuses on consent, in the second part – related to specific use – he uses the word “disclosed”. This might create some momentary doubt about whether, in the second part of the sentence, there is some slight dilution of the principle of informed consent.

This, however, would be a mistaken reading of Kaul J.’s opinion – and it is here that the operative order of the Court once again assumes crucial relevance. Recall that in the operative order, all nine judges held that “decisions subsequent to Kharak Singh which have enunciated the position in (iii) [that is, that privacy is a fundamental right] above lay down the correct position in law.” One of these decisions was a 2005 judgment of a three-judge bench of the Supreme Court called District Registrar vs Canara Bank.

In Canara Bank, Section 73 of the Stamp Act, that allowed – inter alia – the Collector to access private records that would normally be subject to the confidentiality relationship between banker and customer, was challenged. Responding to the contention that once one had voluntarily given over one’s bank records to a third party, there was no privacy interest remaining in them (as held in the much-critcised American case of US v Miller), the Supreme Court held that:

 “… the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-`-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

In doing so, the Court specifically rejected something called “the third party doctrine”, which was a staple feature of American privacy law. The doctrine originated with the judgment in  United States vs Miller, where the question was whether a person had a privacy interest in personal records held by a bank. The Court held he did not, since:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

This is known as the third-party doctrine. Speaking for four members of the Court in dissent, Justice Brennan rejected it, reasoning that:

[A] depositor reveals many aspects of his personal affairs, opinions, habits, associations. Indeed, the totality of bank records provides a virtual current biography. . . . Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds.”

Three years later, in Smith vs Maryland, the question arose whether a pen register (that is, an electronic device that records all numbers called from a particular telephone line), installed on the telephone’s company’s property, infringed upon a legitimate expectation of privacy. The US Supreme Court held that it did not, because:

Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

Smith vs Maryland is essentially the third-party doctrine applied to telephone records. Records in question are knowingly and voluntarily passed on to a third party (the telephone company), the customers being aware that the third party is storing and recording them. Consequently, there is no reasonable expectation of privacy – or so held the US Supreme Court.

In rejecting US vs Miller, did the Indian Supreme Court, in Canara Bank, reject the third-party doctrine as well? In my view it did so, because the Court observed, at para 54, that:

Once we have accepted in Govind and in latter cases that the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-a’-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

In other words, even if we voluntarily had over private information to a third party, we continue to retain our right to privacy in that information. And in Puttaswamy, Justice Nariman’s separate opinion examined Canara Bank in great detail (paragraph 47 and 59), and noted as well that Miller had itself been overturned in the United States through congressional legislation.

Now, when we combine the principle of informed consent, which was affirmed by multiple judgments in Puttaswamy, with the principle that individuals retain privacy rights even over information voluntarily handed over to third parties (the holding in Canara Bank, affirmed by the operative order in Puttaswamy), we get the following proposition: for the purposes of the fundamental right to privacy, consent is not a one-time waiver of your right to control your personal information, but must extend to each and every distinct and specific use of that information, even after you have consented to the State collecting it from you. In other words, voluntarily handing over personal information to the State does not give it a carte blanche to use for whatever purposes it deems fit – but rather, the State is constitutionally bound to take the individual’s informed, meaningful consent at every stage that it wants to use that individual’s information. This, I would suggest, is the correct reading of Justice Kaul’s opinion: the first part of the sentence – that “the State must ensure that information is not used without the consent of users” – refers to separate, discrete and individual instances of use, while the second part of the sentence tags on disclosure and accountability as a supplementary principle.

In the beginning of this essay, I had observed that the centrality of the individual is the golden thread that runs through the six separate opinions in Puttaswamy. In the last essay, I argued that in the first of the three aspects of privacy that the judgment outlined, it accorded paramount importance to the individual, human body, and its relationship with the State. In this essay, I have argued that in developing informational self-determination as the second aspect of privacy, the Court placed the principle of informed, meaningful consent at the heart of its conception of what it meant to have the right to control your personal information. And in the next essay, we shall see how the individual, once again, features at the core of the Court’s vision of decisional autonomy.

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The Supreme Court’s Right to Privacy Judgment -III: Privacy, Surveillance, and the Body

(Author’s Note: This is an adapted version of a piece first published today morning in the Business Standard.)

In the previous two essays, I discussed the conceptual foundations of the right to privacy judgment, as well as the theoretical underpinnings of privacy endorsed by the Court. in the next three essays, I shall consider the three aspects that the judgments identify at the heart of the concept of privacy: the body, personal information, and decisional autonomy.

First, the body. As Justices Sachs and O’Regan of the South African Constitutional Court observed, the “inviolability and worth of the human body” is central to any formulation of privacy. The concern for bodily integrity comes through most clearly in Justice Chelameswar’s opinion, when he speaks about “freedom from unwarranted stimuli” (para 36), corporal punishment, and forced feeding (para 38). The phrase “unwarranted stimuli” recalls the 2010 judgment of the Supreme Court in Selvi vs State of Karnataka where, in striking down police interrogation techniques such as narco-analysis and brain-mapping, the Court provided its most detailed and considered analysis of bodily (and mental) privacy under Articles 20(3) and 21 of the Constitution. I have examined the judgment in Selvi elsewhere, and will not rehearse the arguments here, apart from noting that, in the operative order of Court, Selvi stands affirmed as correctly decided.

Privacy’s concern with the body, however, goes beyond direct, physical interference by the State. Consider, for example, what the journalist Glenn Greenwald writes in No Place to Hide, the book that chronicles Edward Snowden’s unmasking of the American mass surveillance regime:

“Only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the state – where the private realm is effectively eliminated – is one in which those attributes are lost, at both the societal and the individual level.”

Fifty-five years ago, Justice Subba Rao understood this when he penned his powerful dissent in Kharak Singh vs State of UP. Recall that Kharak Singh was about police surveillance of a “history-sheeter”, which included tracking his movements. Striking down the regulations in their entirety, Subba Rao J observed that “if a man is shadowed, his movements are obviously constricted… [the] movement of an automation. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail… the petitioner under the shadow of surveillance is certainly deprived of this freedom [the freedom of movement]. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce perforce engender(s) inhibitions in him and he cannot act freely as he would like to do.”

And:

“Assuming that Art. 19(1)(d) of the Constitution must be confined only to physical movements, its combination with the freedom of speech and expression leads to the conclusion we have arrived at. The act of surveillance is certainly a restriction on the said freedom. It cannot be suggested that the said freedom is also bereft of its subjective or psychological content, but will sustain only the mechanics of speech and expression. An illustration will make our point clear. A visitor, whether a wife, son or friend, is allowed to be received by a prisoner in the presence of a guard. The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom? It is impossible for him to express his real and intimate thoughts to the visitor as fully as he would like.”

At the heart of Justice Subba Rao’s dissenting opinion was the crucial insight that surveillance does not always leave perceptible traces in the physical world. Rather, it works insidiously upon the minds of its targets, channeling their actions, their movements, their associations, and their very thoughts into preset grooves and patterns, killing dissent and heterodoxy, and imposing a stifling, psychological conformism upon society. Nor was this opinion outlandish or extreme: from Bentham’s panopticon to Foucault’s disciplinary regimes, the psychological impact that surveillance wreaks upon the human body has been well-known and thoroughly studied.

The disagreement between Justice Subba Rao and the Majority opinion in Kharak Singh is commonly understood to be a disagreement between the “silos approach” to Part III (flowing from A.K. Gopalan, and upheld by the majority), and the integrated approach that read fundamental rights together (espoused by Justice Subba Rao). However, the disagreement actually went much deeper. The majority judges rejected root and branch Justice Subba Rao’s view that surveillance was constitutionally suspect because of the psychological impact it had upon its targets. According to the majority:

“In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness….  Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the “free” movement guaranteed by sub-cl. (d).  Art. 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.”

The core disagreement between the majority and Justice Subba Rao, therefore, was not merely an interpretive dispute about how to read the Constitution, but a much deeper and more fundamental clash: was the Constitution’s protection of the human body limited to physical and observable constraints, or did the Constitution protect something more intangible as well – that “realm of privacy where creativity, dissent, and challenges to orthodoxy germinate”?

Puttaswamy’s overruling of Kharak Singh, therefore, opens up a further question. Was Kharak Singh overruled only in a narrow sense – i.e., to the limited extent that the “silos approach” was held to be no longer good law? Or was it overruled in the broader sense, in its very understanding of what fundamental rights are about?

In my view, a close reading of all six judgments makes it clear that the Kharak Singh majority was overruled in the broader sense, and Justice Subba Rao’s dissent was resurrected in its entirety. Consider, for example, Justice Chandrachud’s observation, in paragraph 168 of his opinion:

“Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

This is not mere rhetoric. A few lines before this, Justice Chandrachud referred to the individual’s right to “stand against the tide of conformity in creating a zone of solitude.” (para 168) In his separate opinion, Justice Chelameswar warned of “attempts by governments to shape the minds of subjects… conditioning the thought process by prescribing what to read or not to read… what forms of art alone are required to be appreciated leading to the conditioning of beliefs.” (para 37) Justice Bobde defended the idea of a “zone of internal freedom in which to think.” (para 22) And perhaps most bluntly of all, Justice Kaul observed that “knowledge about a person gives a power over that person… privacy is key to the freedom of thought.” (para 52) An overarching cast was given to this by Justice Nariman who, throughout his judgment, referred to Justice Subba Rao’s opinion as one of the “three great dissents” in the history of Indian constitutional law, making it clear that he was referring to – and resurrecting – that dissent in its richest, deepest, and most comprehensive sense.

What all the separate opinions understood was that without privacy, the core constitutional freedoms that we take for granted will cease to be meaningful. Justice Subba Rao’s eloquent description of a shadowed man to whom the entire country was a prison tells us how important privacy is to the freedom of movement. And it is more than that. We will hesitate to associate with unpopular groups espousing unpopular causes, if we know that we are being watched. There is so much that we will not say to each other if we know that, one day, it could be made public. We will self-censor, draw ever more constricting lines in the sand, and suffocate ourselves with our own caution. We will censor others, warning them not to speak to much, be too radical, or think too differently.

On the Kharak Singh majority’s view, none of that is of constitutional concern. But fortunately, that is no longer the law of the land. Five and a half decades after his solitary dissent, Puttaswamy has ensured that Justice Subba Rao’s insight is now constitutional wisdom. As the above observations show, one of the crucial features of the right to privacy judgment is the understanding that democracy is founded on pluralism and diversity, and pluralism and diversity begin in the mind. Privacy is important not because people have something to hide, but because privacy gives people a sanctuary where they can think, be, and live, in opposition to the dominant cultural, social, and political norms of the time. Privacy allows people a space where they can refuse to conform. And it is in that space where liberty flourishes, the liberty to fashion alternative ways of life, which – ultimately – form and take shape in the public sphere, allowing society always to renew itself.

As Meenakshi Arora, one of the senior counsel for the petitioners observed during oral arguments, to live without privacy is akin to living under the shadow of a perpetual, general warrant in your name, issued by the State – a warrant that chills speech, chills association, chills movement, and chills thought; a perpetual warrant that can only produce the kind of conformity that Justice Jackson, the great American judge, likened to the “unanimity of the graveyard.”

In making the body central to the right to privacy, Puttaswamy has performed the crucial role of making cases like Selvi – which were all about limiting the brute, coercive power of the State over the human body – constitutionally secure. But it has also performed an even more crucial role in giving firm, constitutional footing to the challenges to State surveillance, which are bound to be at the heart of the legal battle between the individual and the State in the years to come.

 

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The Supreme Court’s Right to Privacy Judgment – II: Privacy, the Individual, and the Public/Private Divide

(This is the second post in our ongoing series analysing the judgment of the nine-judge bench of the Supreme Court in the “right to privacy” case.)

Privacy presupposes the existence of a private realm. The struggle for privacy has been, among other things, a struggle between rival understandings of how to define the private realm. In the early judgments of the United States Supreme Court, privacy was understood as a spatial concept, summed up in the old aphorism, “a man’s house is his castle.” Gradually, that concept evolved to include relationships and institutions such as marriage and the family: for example, the US Supreme Court struck down a ban on contraceptives on the basis that it amounted to an illegal interference with the marital relationship, and the Irish Supreme Court struck down a similar ban on the basis that it interfered with the right to family life. Still later, privacy came to be understood as the individual’s right to make private (or intimate) decisions and choices, such as her choice of sexual partner, her choice to abort her foetus, and so on.

The judgment of the Supreme Court in Puttaswamy reflects this gradual evolution of the understanding of privacy over time. Although the formulations across the six separate opinions are slightly different, there are wide areas of overlap, reflecting a general consensus among the nine judges – a consensus that reflects modern-day thinking about privacy. Justice Chelameswar held that privacy has three facets – “repose, sanctuary, and intimate decision.” (para 36) His examples ranged across bodily integrity (corporal punishment), control over personal information (data collection and telephone tapping) and intimate choices (euthanasia and abortion) (paras 38 – 40). Justice Bobde focused on the individual’s right to seclusion, both physical and mental (para 31). Justice Nariman – like Justice Chelameswar – explicitly framed the private realm around the body (“the right to move freely“), the mind (control over the dissemination of personal information), and “autonomy over fundamental personal choices” (para 81). Justice Kaul’s opinion, which was centred around privacy and technology, placed great importance upon the individual’s “right to control dissemination of personal information.” (para 53) In the most elaborate opinion, Justice Chandrachud framed it in the following fashion:

“Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” (para 142)

There is one crucial feature about each of these (overlapping) formulations: they place the individual at the heart of privacy. Even Justice Chandrachud – who was the only one to use the spatial formulation – was careful in his choice of words, speaking not about spaces (such as the home) per se, but the “creation of private spaces.” And the act of creation, of course, is an act of an individual, or a group of individuals.

The importance of this might not be immediately visible, and therefore, I want to take us back for a moment to the original, canonical formulation of the right to privacy in Gobind vs State of MP:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

Consider each of these words. Home. Family. Marriage. Motherhood. Procreation. Child rearing. What strikes you about them is that they refer either to spaces (home), institutions (family, marriage) or to social functions (motherhood, procreation, child-rearing). The individual has virtually dropped out of the picture, and privacy has attached itself either to physical or functional space, or to institutions and relationships that are made up of individuals, but go far beyond ordinary contractual relationships.

This framing matters immensely, because there has been a long-standing and powerful feminist critique of privacy in its spatial and institutional forms. By “walling off” the private sphere – say, the home or the marriage – from State intervention, unequal power relationships within these spaces and institutions remain untouched. If constitutional norms stop at the (physical) threshold of the home or the (metaphorical) threshold of the family, then what of all the deep, structural inequalities and imbalances of power that exist within those spaces? As Martha Nussbaum sums up the argument, in an essay titled Is Privacy Bad for Women:

“… appeals to the alleged privacy of the home have been used to defend the exemption of marital rape from sexual assault laws, and to discourage state interference with domestic violence or child abuse. It is not that, in principle, people don’t at times believe that coercion voids the presumption of non-interference. But, as [Catherine] MacKinnon says, “the problem is getting anything private to be perceived as coercive.” In the marital home, there is a presumption of consent. As MacKinnon puts it: it is not the woman’s privacy that is being protected here, it is the man’s privacy. Recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.”

Bertha Wilson, a former judge at the Supreme Court of Canada, puts the point even more bluntly, writing that “… family privacy was also designed for the preservation of male authority and superiority within the home…The problem with privacy law has been its tendency to assume, not only that there exists a commonality of interest between family members notwithstanding the inequalities of power, status and independence that exist among them, but also, following from that, that the protection and promotion of the interests of family members can be safely reposed in the male head of the household.”

What this suggests is that while at first glance, spatial, relational and decisional privacy are complementary facets of an overarching privacy right, there are circumstances in which they can clash. And indeed, Indian constitutional history provides us with an excellent example of this clash. Section 9 of the Hindu Marriage Act, titled restitution of conjugal rights, provides that:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

The Andhra Pradesh High Court, in a case called T. Sareetha vs Venkatasubbaiah, struck down this section as unconstitutional, on the basis that it amounted to State interference with a woman’s private decision whether or not to engage in sexual intercourse, and whether or not to carry a child. A few months later, the Delhi High Court disagreed, noting, among other things, that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond.”

One year later, the Supreme Court agreed with the Delhi High Court and upheld the section on the basis that “it serves a social purpose as an aid to the prevention of break-up of marriage.”

This trilogy of cases paints a stark picture of the clash. The Andhra Pradesh High Court understood privacy as the individual’s right to make uncoerced private choices. The Delhi High Court understood privacy to attach itself to the “home” and the “married life”, but blind to whatever happened within the home or the married life. And the Supreme Court privileged the preservation of the institution of marriage by upholding coercive action against the individual participants of the marriage.

I have discussed Sareetha on this blog before and in a separate academic article elsewhere, and will not rehearse the arguments here. What is important to note, however, is that when Gobind spoke of the intimacies of the “home” and the “married life”, it left open the question of what conception of privacy – spatial, relational, or individual-decisional – might prevail when a conflict arose. And it was that question that was decisively answered by the Supreme Court, with all six judgments locating the right to privacy within the individual. And it was Justice Chandrachud who went a step further, and outlined the clash, as well as its resolution. In a sub-section titled “the feminist critique”, he wrote that:

“Many writers on feminism express concern over the use of privacy as a veneer for patriarchal domination and abuse of women. Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of “family honour” resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and the perception that it has cause an affront to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets. Catherine MacKinnon in a 1989 publication titled ‘Towards a Feminist Theory of the State’ adverts to the dangers of privacy when it is used to cover up physical harm done to women by perpetrating their subjection. 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. (para 140)

In other words, Justice Chandrachud’s point was that any formulation of the right to privacy must take into account the fact that “privacy” – depending on how it is articulated – can both be a tool for the emancipation of women, as well as a weapon of oppression. And as we have seen, each of the six opinions frame “privacy” in a manner that is keenly cognisant of this reality. Gone are the concepts of space, relations, or institutions – to be replaced by the individual, who has the right to create her spaces of solitude, control her personal information, and make her personal decisions. Even though, at various points of his judgment, Justice Chandrachud did go on to mention the family, child-bearing and procreation, his observations in para 140, as well as his formulation of the right to privacy, make it clear that these relationships or institutions carry normative value only because, and insofar as, they are the result of uncoerced, free, individual choice.

Interestingly, this framing of the right to privacy is not only morally attractive, but it is also constitutionally correct. At the heart of the “spatial vision” of privacy is the American Fourth Amendment, that protects the “houses, papers, and effects” of people from searches and seizures. As counsel after counsel on the side of the State reminded the Supreme Court this July, the framers of the Constitution discussed including a clause similar to the Fourth Amendment, and then rejected it. Nor does the Indian Constitution place the “family” at its heart, like the Irish Constitution does – in fact, as we have discussed before, Ambedkar specifically pointed out during the Constituent Assembly Debates that it was the individual who was the basic unit of the Constitution . Consequently, there was no warrant for the Supreme Court to ground a right to privacy in spaces (as the US Supreme Court continues to do) or in relationships or institutions (in fact, more than one judge referred to the Constituent Assembly Debates, and points out that privacy was broader than the narrow, space-oriented concept that the framers had rejected).

What remains? The individual – the Constitution’s basic unit, and – in the Supreme Court’s judgment – the only bearer of the right to privacy.

What might this mean for the future? To start with, surely the judgment in Sareetha requires a relook (Justice Chelameswar, in fact, hinted as much when he notes that status of “personal association” as an aspect of the right to privacy remained “doubtful”, and cited Sareetha) (para 40). More importantly, however, the Delhi High Court is presently hearing a constitutional challenge to the marital rape exception. It is here that we will see the clear clash between the individual privacy rights to bodily integrity, dignity, and decisional autonomy on the one hand, and the normative claims of the institution of marriage on the other. Will the Delhi High Court, then, become the first Court to apply the Supreme Court’s powerful new articulation of the fundamental right to privacy? Time will tell.

In 1971, Herbert Marcuse wrote, in An Essay on Liberation, that “self-determination begins at home – and that is with every I, and the We whom the I chooses.” Last week, the Supreme Court endorsed that proposition – so deeply contested for all these years, and yet, at the end of the day, so simple, and so basic.

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The Constitutional Challenge to Aadhaar/PAN – III: The Petitioners’ Rejoinder and the Issues before the Court

In the last two posts, we examined the case of the Petitioners and that of the Union of India before the Supreme Court in the constitutional challenge to S. 139AA of the IT Act. In this post, we shall conclude by discussing the Petitioners’ rejoinder, and outlining the issues that the Court must adjudicate.

Mr Shyam Divan’s Rejoinder

On Article 14 and the Collision Between the Aadhaar Act and S. 139AA

Mr Divan argued that the entire case rested upon the Attorney-General’s argument that S. 7 of the Aadhaar Act was virtually mandatory – an argument, he stated, he had heard for the first time during these proceedings. Mr Divan contended that the only way in which the Attorney-General had managed to reconcile the Aadhaar Act and S. 139AA was by arguing that S. 7 was mandatory. If that argument failed, then the entire edifice would crumble, and S. 139AA would have to be struck down.

Mr Divan argued that the entire scheme of the Aadhaar Act made it clear that it was voluntary. This was evident from the Statement of Objects and Reasons, from Section 3, which stipulated that “every resident shall be entitled” to an Aadhaar number. It was also evident from S. 3(2), which required the enrolling agency to inform the individual about the manner in which the information would be used and S. 8(2)(a), which required requesting entities to “obtain consent” . And S.7 only permitted the Government to make Aadhaar mandatory as a condition for receiving subsidies which were financed out of the Consolidated Fund of India. Mr Divan argued that the Attorney-General’s reliance on S. 57 was incorrect, because S. 57 clearly stated that it was subject to the rest of the Aadhaar Act. No coercive measures were contemplated by the Act. Furthermore, the voluntariness of Aadhaar was also evident from the enrolling form, which specified consent; from the UIDAI’s own website, which used the phrases “entitled to voluntarily obtain an Aadhaar number“, and “any person may choose to use Aadhaar“; and from the UIDAI’s advertisements.

Aadhaar, therefore, was a voluntary scheme. What flowed from this, according to Mr Divan, was that a legislative scheme which divided people into two categories – those who choose to have an Aadhaar, and those who don’t – and then burdened the latter category, was discriminatory on the face of it. And this was precisely what S. 139AA did. By dividing taxpayers into those who had freely chosen to get an Aadhaar number, and those who hadn’t, and by forcibly requiring the latter to get an Aadhaar, S. 139AA violated Article 14 because its very objective was discriminatory. Mr Divan argued that the petition should succeed on this count alone.

Compelled Speech 

Mr Divan clarified that his point about compelled speech was simply that, by parting with her biometric details and iris scan – the most personal of all information about oneself – the individual was being compelled to “speak” – and that too, not to the State, but to private enrolling agencies. Mr Divan conceded that there might be different considerations if the State was doing the collecting itself; but how, he asked, could the State compel the individual to “speak” to another individual with whom they did not wish to have any interaction? Reading out the list of private enrollers, Mr Divan argued that the entire architecture of Aadhaar – which required me to go and provide my most sensitive information not to the State, but to “Pankaj Shah of Bits and Bytes Co.” violated Article 19(1)(a).

Bodily Integrity, Compelling State Interest, Narrow Tailoring 

The Union of India’s entire argument – Mr Divan stated – essentially boiled down to “what’s the big deal about this? Other laws require you to part with personal information too.” To this, he responded that there could be laws which infringed bodily integrity in order to protect and preserve life: this is why there were laws mandating helmets and seatbelts. Likewise, there could be laws stipulating narrowly-tailored exceptions to the right, in service of a compelling State interest, such as passports (where an urgent need might arise to identify a person in case of an accident abroad). That, however, was a far cry from a centralised database, which – according to the Union’s own affidavit – involved seeding of information. This was also what distinguished Aadhaar from a provision such as S. 32A of the Registration Act. The Registration Act required you to give your fingerprints, but that was for your benefit and was only on the document; it did not go into a centralised database, with all the accompanying possibilities of misuse and data theft. Similarly, the Census Act accorded a very high degree of protection to census information: inspection of census registered, for instance, was prohibited. What this showed was that when the coercive power of the State is used to invade bodily integrity, there must be a consequently high degree of protection – something which Aadhaar, with the possibility of seeding, did not have.

Furthermore, Mr Divan argued, the State had failed to make out a compelling interest. The argument about “giving people an identity” was flawed, because 99.97% of Aadhaar applicants already had pre-existing identity documents. The logic of duplication was also flawed, because official information showed the presence of 1,69,000 duplicate Aadhaar numbers. Consequently, the large-sale infringement of bodily integrity in this case could not be sustained by the goal the State was trying to achieve.

Competence and Deference 

Mr Divan reiterated his argument that under the constitutional scheme, there was an implied limitation upon the State’s power to legislate when it came to the human body: only narrowly-tailored infringements, in service of a compelling interest, were permitted. Wholesale taking of biometric details and iris scans, and storing them in a centralised database for the purposes of seeding was neither narrowly-tailored, nor in service of a compelling interest. Mr Divan also pointed  out that this case had raised serious questions pertaining to the violation of Articles 14, 19, and 21 of the Constitution. Consequently, the Court ought not to follow its usual policy in dealing with “fiscal statutes”, and defer to legislative wisdom; although 139AA was a tax amendment, its nature was anything but purely fiscal.

Mr Divan concluded by arguing that the Union’s three-pronged case – that there was no right to privacy, that fingerprinting and iris scans were no more intrusive than a photograph, and that Aadhaar was mandatory – if accepted, would overturn the entire relationship between the individual and the State, concentrating great power in the hands of the latter at the expense of the former. That would result in a tremendous compromise of civil liberties. He would urge the Court to strike down S. 139AA.

Mr Datar’s Rejoinder

Legislative Overruling of Judicial Orders

Mr Datar argued that before the Supreme Court, the Union of India had always reiterated that Aadhaar was voluntary. On 11th August 2015, and then again on 15th October 2015, the Supreme Court itself had stated that Aadhaar could not be made mandatory. Now, it was open to Parliament to legislate in a way that took away the basis of these orders. Parliament, for instance, could simply stipulate, in a law, that henceforth, every individual was obligated to obtain an Aadhaar Number. However, Parliament had not done that. Parliament had simply enacted S. 139AA, which made it mandatory to quote an Aadhaar number while filing Income Tax returns. That did not amount to taking away the basis of the Supreme Court orders. Mr Datar took the example of a case in Bangalore, where notwithstanding building regulations prohibiting a height of more than 80m, a person had built up to 100m. The case was taken to Court, and he lost. However, before his building could be demolished, the Regulation was changed to make the legal height 110m, and applicable retrospectively, from the time that construction had commenced. That, argued Mr Datar, was an instance of how the basis of a judgment could be altered, and that was the only way known to law in which the Parliament or Executive could overcome a contrary court order. Similarly, in the Supreme Court’s recent judgment banning liquor within a specified distance from highways, some states had responded by denotifying their highways, and turning them into ordinary roads. That was permissible, because it removed the basis of the Court’s judgment; however, those states could not simply have said, “notwithstanding the Supreme Court judgment, alcohol will continue to be sold in these shops.” S. 139AA effectively amounted to state action of the latter kind.

Justice Sikri pointed out that what was unique about this case was that the Court’s earlier orders had been passed when Aadhaar was merely an executive scheme, and no law existed. So could it be said that the orders even applied to a law in the first place? Mr Datar responded by saying that in view of Ram Jawaya Kapoor’s Case, the executive and legislative powers of the State were co-extensive. Consequently, whether the original orders applied to an executive scheme, or to a law, the point remained that they could only be overcome through the specific mechanism outlined above. Justice Sikri and Mr Datar agreed that the Court was dealing with this kind of a situation for the first time in its history, and would have to lay down the law on the basis of first principles. Justice Sikri then asked what the “basis” of the earlier Court orders was, that the Parliament could have legislated to take away. Mr Datar responded that the basis was that since the validity of Aadhaar was yet to be tested on the constitutional anvil, in the meantime it could not be made mandatory for anything but a specified number of services. Consequently, the only way of removing this basis was to pass an Act that stated “Parliament may make Aadhaar mandatory…” Mr Arghya Sengupta interjected to state that S. 7 of the Aadhaar Act did this already. Mr. Datar replied that S. 7 did nothing of the sort.

Legislative Dichotomy

Mr Datar then pointed out that S. 139AA of the Aadhaar Act did not contain a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force…). In the absence of a non-obstante clause, there was a clear collision – or a dichotomy – between the Aadhaar Act and S. 139AA, a dichotomy that could be resolved only by striking down S. 139AA. Once Parliament had passed a law which made Aadhaar a right – it could not then pass a contrary law that made Aadhaar its jural opposite –  a duty without a non-obstante clause. Mr Datar read out numerous parliamentary statements – including one by Mr Jaitley – to demonstrate that at its core, Aadhaar was meant to be voluntary, and also pointed to the utter lack of debate in Parliament before passing S. 139AA.

Article 14

Mr Datar argued once again that the State had entirely failed to make out a rational nexus between making Aadhaar compulsory for individual taxpayers, and its stated goal(s) of preventing duplication, preventing black money, and preventing terrorism. He pointed out that only 0.4% of PAN Cards had been found to be duplicate, and that these figures from 2006. In response to Mr Sengupta’s interjection that this was only 0.4% of a very small sample, Mr Datar responded that that was exactly the point of statistical sampling. He observed there was no data after 2006, and asked on what basis the State had decided to take such a huge step – of mandatory Aadhaar – without analysing data, or sending the matter for consideration by a Parliamentary committee. The reason for the discrepancy between the number of PAN Cards and the number of taxpayers was simply that, after 1998, PAN began to be used for a wide number of transactions that had nothing to do with tax. Consequently, the Union had failed to discharge its burden under Article 14 that there existed a rational nexus between making individuals quote their Aadhaar numbers while filing tax returns, and checking duplication, tax evasion, or black money.

Mr Datar also addressed the Attorney-General’s arguments under FATCA, arguing that FATCA had nothing to do with Aadhaar numbers at all. Mr Arghya Sengupta interjected, saying that FATCA required handing over PAN numbers to US authorities, and that it would be embarrassing if duplicate PANs were handed over. Mr Datar pointed out that this had nothing to do with rational nexus under Article 14.

Article 19(1)(g) 

Mr Datar argued that the consequences of not having a PAN Card effectively locked an individual out of a number of economic transactions that were a lifeline (especially) for small traders and entrepreneurs. Apart from crores of individual taxpayers, it would be this class that would be affected the most: their entire economic life would grind to a halt. Consequently, for those who did not wish to get an Aadhaar number, S. 139AA was a serious infringement of their right to carry on trade and business under Article 19(1)9(g).

Now, if a law violated Article 19(1)(g), it could only be justified under Article 19(6): i.e., if it was a reasonable restriction in the interests of the general public. The correct test for assessing reasonableness had been laid down by Justice Sikri himself, in Modern Dental College vs State of MP (discussed on this blog here), and it was the test of “proportionality”:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

Mr Datar pointed out that for 0.4% of duplicate PANs, 99.96% of taxpayers were being forced into Aadhaar. How, he asked, was this proportionate? In the balancing of interests between duplicate PANs and the freedom to do business, proportionality – in this case – clearly weighed in on the side of the former.

Mr Datar concluded by stating that this was a very serious case, with far-reaching consequences for civil liberties. Responding to the Attorney-General’s contention that all that had happened was that an extra “A” had been added to S. 139A, making it “Section 139AA”, he urged the Court to stop the encroachment on individual rights at its first step. He ended by quoting Justice Douglas of the US Supreme Court:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

Issues before the Court

The Supreme Court has to resolve the following issues:

(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?

(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?

(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?

(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?

(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?

(f) Does 139AA amount to compelled speech under Article 19(1)(a)?

(g) Does 139AA violate the principle of informational self-determination under Article 21?

(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?

Options before the Court

The Court may do one of the following six things:

(a) Strike down S. 139AA as unconstitutional.

(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.

(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.

(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.

(e) Refer without staying

(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.

 

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Filed under aadhaar, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Privacy