The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN): Petitioners’ Arguments

Last month, through an amendment to the Income Tax Act, Parliament made it compulsory for all taxpayers to quote their Aadhaar numbers while filing their return of income (or while applying for a new PAN number). Under the new Section 139AA of the IT Act, the consequence of not complying with this was an invalidation of the individual’s PAN number. This, in turn, would have a number of serious consequences, affecting an individual’s ability to pay her taxes, as well as being blocked from undertaking a number of transactions (such as buying a motor vehicle, or opening a bank account), all of which require a PAN number. In short, Section 139AA effectively required tax-paying individuals to get an Aadhaar Card, on the pain of visiting severe disabilities upon them in case of non-compliance.

On this blog, we have covered some of the constitutional problems with the Aadhaar scheme (which involves the taking of an individual’s biometric details, iris scan, and demographic information, ostensibly for the purpose of better authentication), the government’s conduct in having the Aadhaar Act passed as a money bill, and the Supreme Court’s continuous evasion of the issue by refusing to hear the pending constitutional challenges. Readers will recall the following facts: on 11th August 2015, when Aadhaar was still an executive scheme, three judges of the Supreme Court had referred the constitutional challenge to a larger bench, on the basis that the constitutional status of the fundamental right to privacy was in some doubt; in the meantime, the Court stipulated that Aadhaar could not be made mandatory for welfare schemes. The Constitution Bench assembled once more in October 2015 to modify that order in some respects. After that, the case has not been heard. In the meantime, Parliament passed the Aadhaar Act, which authorised the State to make Aadhaar mandatory for availing of certain benefits or subsidies. Since the passage of the Aadhaar Act, Aadhaar has been made mandatory for a wide range of goods and services, including midday meals. It is in this context that Section 139AA of the IT Act came into being: a statutory amendment that sought to (effectively) make Aadhaar compulsory for taxpayers.

Section 139AA was challenged before the Supreme Court. The Petitioners, led by senior counsel Arvind P. Datar and Shyam Divan, argued their case before a two-judge bench, over three days, followed by two days of arguments by the Union of India. Mr Datar is due to reply tomorrow, after which the hearing will conclude.

In this post, I will attempt to summarise and contextualise the key points of challenge.

Privacy Not Argued

If a case comes to the Supreme Court where the issues involved are substantially similar to another case that is already pending, the Court “tags” the latter case with the former, and hears the two together. This created a threshold problem for the Petitioners. The constitutional problems with Aadhaar remained the same, whether it was a challenge to the Aadhaar Act itself, or to the Income Tax Act making Aadhaar mandatory to file returns: basically, an alleged violation of the right to privacy. However, that question had been referred to a larger bench on 11th August 2015, and had not yet been heard. Consequently, it was a “pending case”, and according to convention, the Court hearing the challenge to the Income Tax Act would be obliged to “tag” it with the pending proceedings before the larger bench. So Petitioners had a choice: insist on their right to argue privacy, and have the case “tagged” with the pending challenge; or give up the argument on privacy, and attempt to convince the Court that Section 139AA was unconstitutional on other grounds.

Perhaps in view of the fact that the Supreme Court has effectively buried the Aadhaar challenge (three successive Chief Justices have refused to list it for hearing, despite multiple “oral mentionings” asking them to do so), Petitioners chose to go ahead with the challenge to S. 139AA without arguing privacy. This was made clear at the beginning of the hearing by Justice Sikri, who pointed out that there was no stay on Aadhaar in the case pending before the larger bench; at this, both Mr Datar and Mr Divan agreed that they would only argue the 139AA challenge on other grounds.

While Justice Sikri, sitting as part of a two-judge bench, was entirely correct in what he said (indeed, there was nothing else he could have said), the Supreme Court’s institutional disingenuousness here needs to be called out very clearly: as I have detailed in my post on judicial evasion, the constitutional challenge to Aadhaar Act has been pending for one year and eight months, with the Court – or rather, the Chief Justice – simply refusing to constitute the bench to hear it. In the meantime, the government has gone full steam ahead to create a fait accompli situation where the challenge becomes academic. Section 139AA is part of that broader program. By not allowing Petitioners to argue privacy on the ground that it was part of a pending challenge in which no stay had been granted because it had simply never been heard, the Court was – effectively – using its own refusal to hear the case as a reason to make the Petitioners fight this battle with one arm tied behind their backs!

The Arguments of Mr Arvind P. Datar

No Indirect Overruling of Judicial Orders

Mr. Arvind Datar’s first argument was that Section 139AA of the Income Tax Act amounted to an indirect legislative overruling of prior judicial orders stipulating that Aadhaar could only be voluntary. While Mr Datar conceded that Parliament was entitled to overrule a judicial decision or order by legislating to take away its very basis, he drew a distinction between direct overruling (by taking away the basis of a court order), and indirect overruling (the latter, he argued, was impermissible). Relying upon the judgments of the Supreme Court in Madan Mohan Pathak vs Union of IndiaIndian Aluminium Co vs State of Kerala, and Janapada Sabha Chindwara vs Central Provinces Syndicate Ltdhe argued that, in the present case, had Parliament simply passed a law mandating that every individual must have an Aadhaar Number, that would have been a legitimate response to the Court’s orders; however, while the Aadhaar Act continued to insist that getting Aadhaar was voluntary, Parliament had chosen to make it mandatory in a backdoor fashion, by inserting penal consequences for not having Aadhaar in the Income Tax Act. And in case of any doubt, “we should adopt an interpretation which upholds… rights.”

Article 14

Mr Datar argued that Section 139AA violated Article 14 of the Constitution because it drew an arbitrary distinction between assessees who were individuals (and therefore compelled to get an Aadhaar Card), and non-individual assessees (such as an HUF, or a company). If the objective of introducing Section 139AA was to use Aadhaar to check black money and fraud (which the Union claimed that it was), then the distinction between individual and non-individual taxpayers bore no rational nexus to the objective, and fell foul of Article 14. T

The bench asked the natural question: given that non-individuals could not, by definition, obtain Aadhaar cards, wasn’t an Article 14 challenge misconceived to start with? In other words, the Aadhaar Card requirement was a way to check black money and fraud specifically by individual assessees. To this, Mr Datar responded by arguing that there were twelve categories of assessees under the Income Tax Act. Section 139AA picked out one class (individuals), and imposed a burden upon them. This act of disadvantaging one class could only be justified under Article 14 if it had a rational nexus with a legitimate goal; but given that black money and fraudulent transactions were not only crimes committed by individuals, there was no rational nexus between the objective and the act of singling out individuals and making them suffer.

Mr Datar also argued that there was no evidence to show that compulsory Aadhaar would actually fulfil the goal of eliminating black money and preventing fraud (or “shell companies”). In fact, the UIDAI’s own statistics showed that there were likely many duplicate Aadhaar Cards; on the other hand, only 0.4% of all PAN Cards had been shown to be duplicate. Consequently, the State had no evidence to show that a shift from PAN to PAN + Aadhaar would actually serve the goal of eliminating black money and fraud.

Article 19(1)(g) 

Mr Datar argued that an individual without a PAN Card was prohibited from engaging in many transactions that were absolutely basic to life in contemporary society. These included buying or selling a motor vehicle and opening a bank account. A cancelled PAN effectively amounted to a “civil death”. It was, therefore, a violation of the freedom “to practise any profession, or to carry on any occupation, trade or business”, guaranteed by Article 19(1)(g) of the Constitution.

Once it was established that Article 19(1)(g) had been infringed, the burden shifted to the State to show that, under Article 19(6) of the Constitution, the restriction was reasonable, and in the public interest. In Modern Dental College vs State of M.P., a Constitution Bench of the Supreme Court had held that the correct test to apply under Article 19(6) was the test of proportionality. In a judgment authored by Justice Sikri himself, the Court held that “proportionality” involved a showing that the means chosen to achieve the “public interest” goal were themselves narrowly tailored; that is, Article 19(6) could not save a statute if it could be shown that some other method, which infringed rights to a lesser degree, could achieve the same goal. Mr Datar argued that – once again – in view of the fact that only 0.4% of all PAN Cards were found to be duplicate, and in view of Aadhaar’s own, widely publicised failings (using the UIDAI’s own data), it could not be argued that compulsory Aadhaar was a “proportionate” restriction upon the right under Article 19(1)(g).

Colourable Exercise of Power

Mr Datar concluded by arguing that Section 139AA amounted to a colourable exercise of legislative power. Solemn undertakings had been given by the Union of India to the Supreme Court that Aadhaar would remain voluntary. Aadhaar remained voluntary under the parent statute (the Aadhaar Act), but there was now a back-door attempt to make it mandatory through the Income Tax Act. In fact, the Statement of Objects and Reasons of the Aadhaar Act themselves made no mention of black money or fraud; Mr Datar argued that if Aadhaar was to be used for that purpose, then surely there would have been some indication of that in the parent statute. All these factors combined pointed to a clear colourable exercise of power. Mr Datar submitted that Section 139AA should accordingly be struck down as unconstitutional.

The Arguments of Mr Shyam Divan

Collision Between the Aadhaar Act and the Income Tax Act

Mr Shyam Divan argued that there was a “collision” between the Aadhaar Act and the Income Tax Act. The former made it clear that Aadhaar was to be a voluntary scheme. While the Government could make it mandatory for the purposes of availing of subsidies, it could not compel people to get an Aadhaar Number, simpliciter. The Income Tax Amendment, however, effectively compelled people to part with their biometric information and iris scans, on the pain of penal consequences. In other words, Section 139AA made mandatory what the Aadhaar Act guaranteed would be voluntary.

In response to the Bench’s observation, that surely it was open to Parliament to create two different statutory regimes – one in which Aadhaar was voluntary, and the other in which it was made mandatory for the purposes of paying Income Tax – Mr Divan argued that the Aadhaar Act and Section 139AA could not be viewed in isolation in such a manner. The Aadhaar Act was the parent statute: and everything in the Aadhaar Act suggested that, from the moment of enrolment, it was a purely voluntary exercise. Now, you could not engraft a scheme whose very basis was voluntariness and free consent, into the Income Tax Act, and make it mandatory. It was in that sense that the procedures under the Aadhaar Act and the Income Tax Act were “in collision”.  Mr Divan therefore invited the Bench to read down Section 139AA of the IT Act by interpreting the word “shall” as “may”; or, in other words, convert the mandatory requirement under 139AA into voluntariness, in order to bring the Aadhaar Act and Section 139AA into harmony.

Article 14

Mr Divan’s case under Article 14 was different in important respects from Mr Datar’s. While Mr Datar had drawn a distinction between individual and non-individual assessees, Mr Divan drew a distinction between individual assessees who consented to getting an Aadhaar Card, and other individual assessees who didn’t. He argued that Section 139AA drew a distinction within this homogenous class of persons, and disadvantaged the latter. Now, in view of his previous submission – that the parent Aadhaar Act made it clear that Aadhaar was voluntary – drawing a distinction between those who had chosen to get an Aadhaar Card, and those who would now be required to get an Aadhaar Card to pay their taxes, and placing a burden upon the latter – constituted ex facie discrimination. In other words, the statute’s very purpose was discriminatory, on its face (which, according to the judgment of the Supreme Court striking down S. 6 of the DSPE Act, was impermissible). Hence, there was no need to go into questions of classification and nexus: the amendment was presumptively unconstitutional under Article 14.

Bodily Integrity

Mr Divan argued that biometric information and iris scans belonged to the individual. They were, effectively, part of the individual’s body. He cited a range of thinkers, from Hobbes and Locke on the one hand, to Salmond and Rawls on the other, to argue for the individual’s absolute ownership of her body, and her right to bodily integrity under Article 21 of the Constitution. What, he asked, did Article 21 protect, if it did not protect the body?

Justice Bhushan pointed out that at the time of issuing a passport, similar information was taken from the individual. Mr Divan argued, however, that while it was permissible to take such information for limited and narrow purposes (for instance, for the purposes of identifying an individual in case of an emergency while she was abroad), and where there was a compelling State interest, those conditions were not satisfied in the present case. Mr Divan also invoked the 1920 Identification of Prisoners Act to argue that even in pre-Constitutional, colonial statutes, information that had to do with the body was collected only in very specific circumstances, and only for a very narrow set of purposes, where it was absolutely necessary to do so. Even a refusal would only lead to an adverse inference. That manner of necessity had not been demonstrated in the present case – especially in light of the fact that Aadhaar was suffering from numerous problems of duplication and public leakages (instances of which were cited to the Court).

In sum, Mr Divan argued that fingerprints and iris scans belonged to the individual, as integral parts of her body. They could not be “nationalised” or “expropriated” by the State without express consent, unless there was a compelling State interest, and the infringement was narrowly tailored. The argument of compelling State interest and narrow tailoring may justify, for instance, the taking of DNA or blood samples in certain limited circumstances (this was in response to a question from Justice Bhushan), but certainly did not permit the kind of 24/7 tracking system established by Aadhaar. What Aadhaar was doing, Mr Divan argued, was fundamentally changing the nature of the relationship between the individual and the State; it was shifting the balance of power between individual and State to the extent that it ended up betraying the promise of the Constitution to establish “limited government”. The Constitution, he argued, was not a “charter of servitude“; it envisaged free individuals, whose bodies could not be invaded without their express consent. He relied upon the judgments of the Supreme Court in Sunil Batra vs Delhi AdministrationNALSA vs Union of India and Aruna Shanbaug vs Union of India, to highlight the importance of bodily integrity under Article 21 and the constitutional scheme.

Personal Autonomy and Informational Self-Determination

Mr Divan argued that in the digital age, the right to informational self-determination had become a crucial facet of the right to personal autonomy, and was protected under Articles 14, 19, and 21 of the Constitution. The principle of informational self-determination – which had its origins in German constitutional doctrine, with the Population Census Case, and had now been accepted in both Canadian and South African Constitutional law – stipulated that an individual had the right to limit what she put out to the world about herself. Its basis was not privacy, but the principles of dignity and personal autonomy, both of which were long recognised under Indian constitutional doctrine. Informational self-determination was essential for the free development of the individual. Moreover, it was not simply an individual right: likewise, the free development of the individual was essential to constitute a free and democratic society, and a free and democratic communicative order.

In the case of Aadhaar, Mr Divan argued, the principle of informational self-determination was specifically compromised because data was required to be handed over to private parties. These private parties’ only accountability was in the form of a “Memorandum of Understanding” with the government; there were minimal data protection safeguards imposed upon them, and indeed, 34,000 such independent operators had been blacklisted by the government. In fact, the MoU’s allowed the registrars of these entities to retain biometric data with them, something that could have potentially devastating consequences. In sum, compelling the handing over of personal data to private parties with such minimal safeguards over their functioning amounted to “a complete destruction of personal autonomy [and] a debasement of… [the] right to informational self-determination.”

Compelled Speech

Mr Divan then argued that compelled extraction of demographic information in Aadhaar – and even more, compelled extraction of biometric data and iris scans – effectively amounted to compelled speech, which was an infringement of Article 19(1)(a) of the Constitution. In the case of Bijoe Emmanuel vs State of Kerala, the Article 19(1)(a) rights of Jehovahs Witnesses to not be compelled to sing the national anthem had been recognised by the Supreme Court. The Jehovahs’ Witnesses, argued Mr Divan, were willing to stand up and respect the national anthem, but not to sing it; similarly, non-Aadhaar tax payers were willing to respect the law of the land and pay their taxes – only not by parting with their biometric and demographic information.

Proportionality

Mr Divan reiterated Mr Datar’s argument that, in view of the Government’s own data that only 0.4% of PAN Cards were duplicates, this move was simply disproportionate.

Legislative Competence 

Mr Divan argued that there was no legislative entry in the Seventh Schedule that allowed for a right of “eminent domain” over the individual body. Consequently, the State was barred from “nationalising” the individual’s fingerprints and biometric data, except in the narrowest of circumstances. At best, the State could act as a “trustee”, or a “fiduciary”, of a person’s property in themselves. It could not compel beneficiaries to permanently part with it, especially in view of the fact that giving up one’s fingerprints and iris scans was a permanent act. Under the Constitution, the State could not simply take that data and store it in a centralised database.

Conclusion

Mr Divan ended by arguing that Section 139AA had serious impacts on the freedom of trade and commerce, the freedom of speech and expression, and the freedom of association (one could hardly form associations without a bank account). He argued that what the Union of India was doing was effectively a bait-and-swith, in the mould of Humpty Dumpty in Alice Through the Looking Glass, who had stated that a word meant exactly what he said it meant: the Union was doing something similar with the “mandatory voluntary” nature of Aadhaar.

In view of all of that, he requested the Court to strike down or read down the Section. However, he had an alternative prayer as well: in case the Court felt that the privacy and non-privacy issues in the case were inseparable, then they could refer and “tag” the case with the pending hearing; however, in view of the fact that the situation would become irreversible after July 1 (the day the amendment would come into effect), at the very least, he requested the Court to stay the provision, or prohibit coercive action by the State to implement it, until the final decision. All the previous orders of the Court had recognised the gravity of the situation, and protected status quo.

(Disclosure: The author assisted Mr Datar in the constitutional challenge before the Court.)

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

Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

In the last post, I argued that taxing sanitary pads non-trivially disadvantages women, on the ground of their sex, and consequently, violates Article 15(1) of the Constitution. There have been a substantial number of responses to the argument, both in the comments section of the blog, and elsewhere, which have pushed me to clarify and refine some of my thinking that went into the original post. In this post, I shall attempt to respond to some of the points that have been made.

“Sex” is Not a Biological Fact

I should start by clarifying that my original post assumed “sex” to be both binary, and a given, biological fact. We now know that this framing of “sex” is just that: an assumption, or a social construction. Without getting into complex terminological debates about the difference between “sex” and “gender”, it was correctly pointed out in the comments that in NALSA vs Union of India, the Supreme Court has (at least implicitly) accepted that “sex” under Article 15(1) of the Constitution is as much a matter of personal identification, as it is a matter of biology. It was also pointed out that the argument bypasses the rights of transgender individuals.

I accept the thrust of these criticisms, insofar as there exist individuals who do not identify as women, but who also menstruate, and require sanitary pads. For the purposes of this post, however, while acknowledging this reality, I want to continue using “sex” in terms of a distinction between men and women – only for the reason that the argument depends on working within existing law and jurisprudence, both of which are committed to the binary, objective understanding of “sex”. Once we succeed in establishing the case for sex discrimination on the old, classic model, we can then explore how we might extend it to our present, more nuanced understandings of “sex” and “gender”.

The Gendered Implications of Taxation Regimes

At the heart of a lot of comments disagreeing with my argument, I think, lies a sense of unease with running together tax law and discrimination law. We are accustomed to thinking of taxation as a sovereign function, which conceptually depends upon the State having to make discretionary choices about how best to raise revenue, through a system of financial incentives and disincentives. Taxes, ultimately, are guided by economic considerations and an assessment of goods and services, not of people. Consequently, while it is possible that tax might be used as a weapon of discrimination (jizya is a classic example) – and indeed, both the American and the Indian Supreme Courts have noted the possibility of punitive taxation being used to stifle the free press – this is limited to exceptional cases where the State is clearly acting with hostile purpose.

I would suggest, however, that according taxation law a high threshold immunity from the norms of discrimination would be a mistake. On the contrary, taxation gives the State such a powerful weapon to mould behaviour, that we should be specially solicitous of testing a taxation regime against constitutional norms. Goods and services are intrinsically linked to peoples’ conduct, choices, and ways of living. In my last post, I took the example of a tax levied only on crucifixes: while this might be dismissed as a very obvious, and unlikely example, there are other, indirect ways, in which tax regimes can be discriminatory.

An excellent judicial example of this is the judgment of the Canadian Supreme Court in Symes vs Canada. In Symes vs Canada, it was argued that disallowing childcare expenses as “business deductions” under the Income Tax regime was discriminatory on grounds of sex. The Appellant argued that, in view of the fact that women bore a disproportionate burden of childcare within the family, and consequently, were far more likely to need to hire child-carers in order to pursue their business interests, refusing business deductions amounted to sex discrimination. More broadly, the Appellant’s argument attacked the central assumptions of the Income Tax regime, which had been enacted at a time when gender roles were more rigid, and it was presumed that businesspeople would be male. For instance, under existing precedent, expenditures on taking clients out to golf, or to dinner, were deductible as business expenses, on the ground that these expenditures bore a proximate relationship with promoting the assessee’s business. Under that logic, however, paying a child-carer to free up time to pursue business was equally proximate. The only reason why it was not allowed as a business deduction was that the Income Tax regime was founded upon the assumption of a clear separation between the home and the business world, and was unable to envisage a reality in which women would be primed to pursue business while continuing to be burdened with responsibilities of childcare.

We can therefore see how a seemingly innocuous element of tax policy – disallowing childcare expenses as business deductions – was based upon a set of assumptions that were presumptively sex discriminatory. Ultimately, by a 7 – 2 majority (interestingly, the only two women on the bench were also the two dissenters), the Supreme Court rejected the case of the appellant; but it did so on the technical ground that the appellant had not shown that women bore a disproportionate share of the expenses on childcare (as distinct from responsibilities of childcare). What remains important, however, is that both the Majority and the Dissent(s) agreed that the taxation regime could – and often did – impact gender equality in both direct and indirect ways.

Condoms, Aftershave Lotion, Lipstick, Underwear, and Disadvantage

Many of the objections to my arguments took the form of counter-examples: if I was resting my case against taxing sanitary pads on the proposition that only women used them, then by the same logic, (men’s) condoms, (men’s) aftershave lotion, (women’s) lipstick, and (women’s) underwear should also be exempt from taxation under Article 15(1).

I should start by clarifying that there are two responses to this that I am not relying upon. First, I am not relying upon Article 15(3) of the Constitution. As I have argued before on this blog, I do not believe that Article 15(3) provides a carte blanche to the State to pass any law benefiting women at the expense of men. Article 15(3)’s location within the broader anti-discrimination clause clearly indicates that it is limited to saving those laws that benefit women with a view to remedying historical and structural discrimination. Consequently, if the principles of my argument applied equally to sanitary pads and to aftershave lotion, then 15(3) could not be a ground to legitimately deny men the benefits of tax-free aftershave.

Secondly, I am not resting my argument purely on a distinction between essential items and luxury goods. That distinction is important, but – as I shall go on to show – it is better understood as an argument not about essentials/luxuries, but about disadvantage.

In the last post, I had argued that the key to my argument under Article 15(1) is a shift from understanding discrimination law as being about a strict comparison between two classes, to understanding it as being about remedying historical and structural disadvantages. These disadvantages – which could take the form of deprivation of goods and services, or humiliation and insult – were located around the sites – or grounds – set out by Article 15(1): sex, race, religion etc.

I should clarify what I mean by this: I do not mean that we should stop thinking of discrimination as a question of equality. However, the kind of equality that is at stake when we think of discrimination law is – in the words of the South African Constitution“the full and equal enjoyment of all rights and freedoms.” The shift is a subtle, but important one: our enquiry is now not whether “X” action applies to “A”, but not to “B” (the strict comparator approach, under which sanitary pads do not raise a discrimination issue because – as a commentator pointed out – men do not menstruate); but rather, does “X” action affect “A’s” “full and equal enjoyment of all rights and freedoms” in a manner that it doesn’t affect “B’s”.

Now if we understand a sanitary pad tax as – effectively – a tax on menstruation, then the applicability of the second framing of discrimination (as disadvantage) should become easier to analyse. It is important to start by noting the well-documented social, cultural, and economic role played by perceptions of menstruation in upholding (unequal) gender roles in society: many societies have viewed menstruation as a symbol of impurity and inferiority; but perhaps more importantly for our purpose, the physiological effects of menstruation have serious economic ramifications upon women’s participation in the workplace on equal terms with men (consider the recent debates on paid menstrual leave, for instance), as well as upon their reproductive health.

I have only set out the form of the argument here: a complete argument would require a detailed scientific and sociological study of the societal affects of menstruation, and the role of sanitary pads in that context. It would also require dealing with an objection raised in the comments, namely, that in view of the fact that only 12% of Indian women use sanitary pads (and the other 88% have to make do with alternatives), in the Indian context perhaps sanitary pads are luxuries: to answer this objection, we would need to consider both women’s testimony, and scientific evidence, on how sanitary pads mitigate the debilitating effects of menstruation

Presumptively, however, I hope that this makes clear the distinction between sanitary pads on the one hand, and condoms, lipsticks, aftershave lotion, and underwear on the other (this is apart from the fact that neither condoms nor underwear is sex-specific): a tax on sanitary pads is effectively a tax on menstruation. It is discriminatory because it entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate. Now if a similar argument can be made for other items, then there is a ground for exempting them from tax as well.

Why Not Article 21? 

Many commentators were of the view that Article 21 – through arguments about the right to dignity and the right of access to health – might provide a better constitutional foundation for an argument against taxing sanitary pads. I would, however, prefer to maintain a focus on Article 15(1), for three reasons: first – for the reasons advanced above – I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory; secondly, an Article 15(1) argument helps us to move beyond the strict comparator bind that we’ve been in for the last six decades, and to think of fresh ways of conceptualising discrimination; and thirdly, I’m hesitant about an expansive reading of Article 21. As I have argued before on this blog, we should be wary of continuing to use Article 21 in a manner that both dilutes the core right (life and personal liberty), as well as risks taking us to a place where Article 21 begins to swallow up other rights under the new judicial fad of “balancing rights”. This does not, of course, take away from the fact that the sanitary pad tax does raise a core issue of access to health (as much as it raises an issue of discrimination), and under existing jurisprudence, Article 21 does include a right of access to health.

Specific and Holistic

One commentator raised an important point: would the tax on sanitary pads remain discriminatory if it was shown that overall, the tax regime as a whole was more favourable to women than men? In other words, what if it could be shown that the burden on sanitary pads was offset by other benefits in the IT Act, so that at the end of the day, women had a smaller overall tax burden?

In my view, I think this argument would have force if we continued to think about discrimination as centred around a strict comparative approach. On the shift to the disadvantage approach, however, it doesn’t matter if overall women are placed better off than men: the tax on sanitary pads – which is effectively a tax on menstruation – causes disadvantage that is of concern to discrimination law, even if that disadvantage is offset by advantage elsewhere. However, I am not entirely convinced of this response.

Conclusion

In conclusion, therefore, I think that despite some nuanced and important objections, the basic form of the argument – that a tax on sanitary pads presumptively constitutes sex discrimination under the Constitution – continues to hold. Whether it actually constitutes sex-discrimination depends upon producing the kind of evidence that I have outlined above, including – and especially – the personal testimonies of women.

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Filed under Article 15 (general), Article 21 and the Right to Life, Equality, Non-discrimination, Right to Health, Sex Discrimination

Does a tax on sanitary pads violate Article 15(1) of the Constitution?

The last few days have seen a campaign asking for a removal of the tax on sanitary pads (which is 5% in Delhi, and goes up to 14% in certain states). It has been argued that the premise of taxing sanitary pads is that they are luxury items; however, their impact on reproductive health and the overall well-being of women, at home and in the workplace, marks them out as essential items rather than luxury goods.

In this post, I will attempt to advance an alternative, legal argument: I will contend that a tax specifically on sanitary pads is unconstitutional, since it amounts to “discrimination on grounds… of sex“, which is prohibited by Article 15(1).  While the argument itself is simple, the possible objections to it are many and complex; consequently, I shall address them in some detail.

Sanitary Pads and Article 15(1)

Article 15(1) prohibits, inter alia, sex discrimination. Discrimination, both in its common usage, as well as in the understanding of the Supreme Court, broadly means to unequally allocate benefits and burdens among identifiable classes of people.

Sanitary pads, by definition, are used only by women. A tax on sanitary pads therefore amounts to a burden upon women. Or, to put it another way, but for being a (menstruating-age) woman, an individual would not be burdened by the sanitary pad tax. Under the classic definition, therefore, the tax discriminates on “grounds of sex.”

This probably sounds rather counter-intuitive. Perhaps the following analogy might help: would not a specific tax on crucifixes amount to discrimination on grounds of religion? If, intuitively, we think that it would, then there is every reason to hold that a tax on sanitary pads amounts to discrimination on grounds of sex: sanitary pads are, arguably, even more important for women than crucifixes are for Christians. That it does not intuitively appear to be so is probably because of a host of political and historical reasons, which have ensured that religious identity is salient in a way that sexual identity is not.

Let us now consider the objections.

Objection 1: The tax is on items, not on persons

The first, obvious, objection is that the tax in question is not a tax on women, but a tax on sanitary pads. Article 15(1) only prohibits discrimination “on grounds of sex“. It does not prohibit discrimination that will ultimately effect a particular sex only (readers will notice echoes of Koushal vs Naz, which held that Section 377 punished only acts, not people).

It is far too late in the day, however, to advance this argument. It is now firmly established, through more than six decades of constitutional jurisprudence (and indeed, pre-constitutional jurisprudence), that the correct test to be used in determining the constitutionality of a statute is not its object or form, but its effect upon rights. This was the holding of the Constitution Bench of the Supreme Court in Khandige Sham Bhat vs Agricultural Officer, in Prem Chand Garg vs Excise Commissioner, and – specific to Article 15(1) – in  Anuj Garg vs Hotel Association. Consequently, the fact that the tax is not a tax on women makes no difference; the fact that it affects women, and women alone, brings it within the ambit of Article 15(1).

Objection 2: “On grounds only of…

A second possible objection might point to the text of Article 15(1), which prohibits discrimination on “grounds only of… sex.” Focusing on the word “only“, the argument would then be that the tax does not burden all women, but only menstruating-age women who use sanitary pads. Consequently, it does not amount to discrimination on grounds only of sex, but “sex-plus”, as it were.

In the early years of Indian sex discrimination jurisprudence, various High Courts disagreed precisely on this issue. While some High Courts upheld putatively discriminatory laws on the basis that they took into account sex and other factors not within the ambit of Article 15(1), other High Courts held that Article 15(1) was applicable to discriminatory laws that were based on sex, and other factors “arising out of sex.” For our purposes, however, the controversy was put to rest by the judgment of the Supreme Court in Air India vs Nargesh Mirza, which held that pregnancy-based discrimination was hit by Article 15(1). The case of pregnancy, I would submit, is on all fours with the case of sanitary pads: not all women get pregnant, but only women get pregnant; similarly, not all women menstruate (and thereby need sanitary pads), but only women menstruate.

More broadly, jurisdictions world over are moving away from what the discrimination law scholar Tarunabh Khaitan calls the strict comparator test. In other words, it is no longer necessary to show, in order to make out a claim of discrimination, that a law must burden all members of one defined class, as opposed to the other. Discrimination law is shifting its focus, rather, to the question of whether laws disadvantage members of a class by virtue of their belonging to that class. That, as we have seen, is clearly the case here.

Objection 3: No Comparator

A more subtle form of the objection, however, might be as follows: given that there is simply no equivalent to sanitary pads for men, it makes no sense to say that a tax on sanitary pads discriminates against women; the whole point of discrimination law is that it is comparative. If, therefore, you cannot by definition tax men on the equivalent of sanitary pads, because such an equivalent doesn’t exist, then the act of taxing women might be problematic in other respects, but it is not an act of discrimination.

Readers will note that this argument restates the comparator claim in a more subtle form: the claim is no longer that the comparison must be between all women and all men, but that there must be something to compare to.

There are three responses to this argument. The first is that the logic of Nargesh Mirza covers this situation as well. In Nargesh Mirza, it was held that penalising pregnancy amounted to sex discrimination, notwithstanding the fact that men could not, by definition, get pregnant. Here, the State is penalising the use of sanitary napkins, notwithstanding the fact that men do not, by definition, use sanitary napkins. The analogy with Nargesh Mirza might not be immediately intuitive, perhaps because, on reflex, we think of pregnancy as a condition, and sanitary pads as an item of use. On the comparator logic, however, both are the same.

Secondly, we can restate Khaitan’s point that the focus of discrimination law is shifting from comparison to disadvantage. Discrimination law now sees as its focus the redressal of structural and institutional conditions that have been historically responsible for subordination on the basis of certain personal characteristics, such as race, religion, gender, etc. Placing a monetary premium upon menstruation fits within this particular understanding of discrimination.

Thirdly, let us go back to our hypothetical of a tax on crucifixes: there is no specific equivalent of a crucifix in other religions. Can we then say that a tax on crucifixes does not discriminate against Christians? The answer is no. Now, you might argue that the comparator there is other religious symbols, such as the Muslim skullcap, or the Sikh turban. Fair enough; but let us imagine that there are only two religions, Christianity, and Religion X, which has no “symbols“, but is an entirely abstract religion. Now, would we say that a tax on crucifixes does not discriminate on grounds of religion? I would submit that the answer would remain no, suggesting that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons.

Objection 4: After-shave lotions?

The last objection is a consequential one: there are many products used exclusively by women, and many products used exclusively by men: for instance, aftershave lotion. Holding a tax on sanitary pads unconstitutional would mean that none of those products could be taxed. This is an absurd consequence, and any interpretation that supports this consequence must be rejected.

While I am somewhat tempted to bite the bullet and say yes, a tax on aftershave lotion would be unconstitutional on grounds of Article 15(1), I think that there is a crucial distinction between sanitary pads and aftershave lotion, and that it is a distinction that is relevant to discrimination law. This distinction requires us to stress once more that the point of discrimination law is not to capture every instance of dissimilar treatment on the “grounds” set out under Article 15(1), but to remedy disadvantage. It is here that the arguments made by the political campaign – referred to at the beginning of the post – become relevant, because it has been shown that the use of sanitary pads is crucial to women’s reproductive health, as well as their participation in the workforce on equal terms with men. Placing a monetary premium on sanitary pads, therefore, is discriminatory because it disadvantages women, on grounds of their sex, in a non-trivial way. I am not sure if a similar case can be made for aftershave lotion.

Conclusion

Let me sum up my argument. A tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution. The fact that it does not affect all women (only menstruating women) makes no difference from the perspective of Article 15(1). The fact that it does not, by definition, affect men at all, also makes no difference from the perspective of Article 15(1). And finally, Article 15(1) is attracted because discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex. This makes the initial, presumptive applicability of Article 15(1) absolute.

*I am grateful to Suhrith Parthasarathy and Jawahar Raja for helping me think through some of the issues in this piece.

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Anti-Defection and Expelled Members: Text, Structure, History, and Theory

Yesterday, a two-judge bench of the Supreme Court issued notice and referred to a larger bench the case of Amar Singh vs Union of India. Amar Singh was expelled from the Samajwadi Party in December, and was designated an “unattached member” in the Rajya Sabha. In his petition, he argued that, since he had been expelled, he should now be entitled to vote against the Party whip, or join another political party, without being disqualified from parliamentary membership under the Tenth Schedule of the Constitution. Standing in his way was a judgment of a two-judge bench of the Supreme Court in 1996, G. Vishwanathan vs The Speaker, in which the Court had held that the Tenth Schedule was applicable to expelled members. With the case now being referred to three judges, the Court can consider the issue afresh.

Interestingly, this is not the first time the Court was asked to reconsider the correctness of G. Vishwanathan. Amar Singh had been previously expelled from the Samajwadi Party in 2010. He, along with two other expelled members (of other parties), filed an identical petition asking that the 10th Schedule not be applied to them. The Supreme Court referred the case to a three-judge bench, but that bench only heard the case in 2016. At that time, all the three petitioners’ terms in parliament was over; therefore, despite hearing the matter at length, the Supreme Court finally declined to answer the referral question about the correctness of Vishwanathan. But now, with Amar Singh expelled all over again, the case is back in Court for a second round.

What makes Amar Singh vs Union of India so interesting is that it lies at the intersection of constitutional text, the scheme of the Tenth Schedule, its framing history, and democratic theory. Broadly, the Tenth Schedule provides for disqualification from Parliament in case of “defection”. Section 2 of the Schedule provides for two circumstances: where a person has “voluntarily” given up the membership of his party; and where a person votes against her party whip. The Explanation to the Section states that “an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.”

Vishwanathan and the Text of the Tenth Schedule

In Vishwanathan, the Supreme Court relied upon the text of Section 2 to hold that the only circumstance contemplated by the Schedule, in which a member no longer belonged to her political party, was if she “voluntarily” gives up his membership. The Court also relied upon the Explanation, which stated that a member was deemed to belong to the party who set her up as a candidate for election. For this reason, the Court held that:

“Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached’. The further question is when does a person `voluntarily give up’ his membership of such political party, as provided in paragraph 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member.”

In other words, despite his expulsion, for the purposes of the Tenth Schedule, an MP remained a member of the political party that had expelled her, until she joined another party – at which point, she was deemed to have “voluntarily” given up her membership, and subject to disqualification.

Of course, this pure textual reading – that leads to a seemingly counter-intuitive result – is not the only way of reading the Tenth Schedule. In Vishwanathan, the Court based its entire interpretation upon the deeming provision in the Explanation (extracted above); however, it is well-settled that an Explanation to a Section can only clarify its scope; it cannot expand it. In this context, if we start our reading with the main Section (instead of starting with the Explanation, as the Court did), we arrive at the following reading: the word “voluntary”, in its ordinary, common-sense meaning, obviously cannot apply to a situation of expulsion. An expelled member has been compelled to leave her party. Section 2(1)(a) of the Schedule, therefore, does not apply to her. Nor does an expelled member “belong” to the party that expelled her any more. Consequently, 2(1)(b) of the Schedule does not apply either. Since Sections 2(1)(a) and 2(1)(b) exhaust the circumstances in which an elected member can be disqualified for defection, the Tenth Schedule does not apply to expelled members.

Parliamentary History

If both these readings are equally convincing, which of them ought to prevail? It is here that Parliamentary history comes in. The original draft of the Tenth Schedule had an additional “Section 2(1)(c)”, which specifically made the Schedule applicable to expelled members. During the course of the debates, however, this additional section was dropped from the final version of the Schedule. And indeed, a perusal of the 1985 Parliamentary debates reveals that the Lok Sabha members were explicit about the reasons why it was dropped: multiple members stood up to draw a distinction between what constituted defection, and what constituted dissent, and argued that the elimination of Section 2(1)(c) was important to preserve intra-party dissent. There was no contrary voice. Consequently, it seems clear that, at the very least, Parliament did not intend the Tenth Schedule to apply to expelled members. Of course, to what extent the Court can take this into account – and to what extent the Parliamentary Debates can modify the Court’s interpretation of the Tenth Schedule – is another question.

The Basis of Anti-Defection 

Consider also the question of democratic theory. Anti-defection is premised on the theory that the basic unit of parliamentary democracy is the political party, and that therefore, a legislator’s responsibility to her party is more important than her responsibility to her constituents. This arguments comes through clearly in Kihoto Hollohan vs Zachillhu (which G. Vishwanathan’s Case relies upon). In that case, the constitutionality of the 10th Schedule was challenged. The petitioners argued that:

“… the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.” (Emphasis supplied)

The challengers advanced a theory of representative democracy where the primary responsibility of a Member of Parliament was towards the constituents that had elected her. To substantiate this theory, they relied upon Edmund Burke’s 1774 speech to the Electors of Bristol and the observations of Lord Shaw sitting in the British Appeals Court in 1910, both of whom had stressed that under the British “Parliamentary Constitution” and system of “representative Government”, an individual legislator’s conscience ought to be the supreme. The Tenth Schedule, that subordinated the legislator’s conscience (presumably guided by the demands of her constituency) to that of party ideology, on the pain of disqualification, was therefore contrary to the basic feature of “democracy”.

The Supreme Court rejected this argument. Its reasoning proceeded as follows: first, applying principles of judicial deference, it accepted the legislative judgment that “unethical political defections” constituted “a canker eating into the vitals of democracy”. It then acknowledged the importance of debate and discussion within the Parliament, but also went on to observe:

“… a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things.”

Yet what of the legislator’s responsibility to her constituents, and the possibility that the exercise of this responsibility might come into conflict with the party line – and, correlatively, the requirement of dissent and democracy within political parties? The Court recognised this problem, responded by extracting a lengthy passage from Rodney Brazier’s Constitutional Reform and, in particular, seized upon a passage from the book that advocated a right to recall in case a legislator crossed the floor of the House. It finished by holding that compulsory disqualification was nothing more than a “statutory variant of… [the] justification underlying the power of recall.

Thus, in Kihoto Hollohan, the Supreme Court explicitly endorsed a model of parliamentary democracy which privileged the party line – and therefore, by extension, the vehicle of the political party – over the MP’s sense of responsibility to her constituents, and her right to dissent within the party. However, it is important to note that this does not negate the MP’s responsibility to her constituents or her right to dissent. In fact, in other judgments, the Supreme Court has indicated that the relationship between an elector and a candidate is normatively at least as important as that of the role of the political party within the Indian Constitutional scheme. A good example of this is a set of cases brought to Court in the last decade, which sought to make disclosure of personal details about political candidates compulsory. In Union of India vs Association for Democratic Reforms, for instance, the Supreme Court noted that:

“For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens – voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided – its result, if pending – whether charge is framed or cognizance is taken by the Court?”

In this case, therefore, the Court placed a substantial amount of importance upon the relationship between the citizen-elector and the candidate qua candidate. This suggests that the Indian Constitutional scheme contains elements of both the legislator-centric and the party-centric theories of representative democracy.

Now, if this is the case – i.e., that Indian parliamentary democracy contains elements both of the part-centric model as well as the legislator-constituent-centric model – then the Xth Schedule ought not to be interpreted in a way that entirely privileges the former over the latter. In other words, given that the Xth Schedule prescribes the extremely draconian punishment of disqualification for “defection” – i.e., it subordinates the interests of the party over the relationship between the legislator and her constituents – when interpreting the Xth Schedule, the Court should do so strictly, so as to not entirely efface the latter. In other words, if there are two possible interpretations open to the Court – one that expands the scope of the Xth Schedule, and one that does not – all other things being equal, the Court should choose the former.

The Finality of the Speaker

Lastly, consider this. The Tenth Schedule makes the speaker’s decision on the issue of whether defection attracts disqualification final. The rationale for this is that – following common law traditions – those acts that have purely to do with the business of the House are to be regulated by the Speaker. Now, in the Parliamentary Debates, one of the reasons for removing Section 2(c) from the Draft Xth Schedule Bill was that expulsion of members is something that takes place “outside the House”. Consequently, an interpretation of the Tenth Schedule that would bring expulsion within its meaning would effectively mean extending the jurisdiction of the Speaker to activities outside the legislature. Could such an interpretation stand?

Conclusion

Therefore, when the three-judge bench assembles to hear Amar Singh vs Union of India, it will have to contend with a range of arguments centred around the text of the Tenth Schedule, its scheme, the Parliamentary history, and competing theories of democratic legitimacy in a parliamentary system. The outcome should be fascinating.

(Disclaimer: The author was one of the lawyers working on the brief on the behalf of the Petitioner, Amar Singh.)

 

 

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Money Bills, Speaker’s Discretion, and Judicial Review

(In this guest post, Jeydev c.s. examines the controversial – and ongoing – issue of whether the Speaker’s decision to classify a bill as a money bill is subject to judicial review.)

Money bills seem to be all the rage these days. What is generally relegated to the annals of arcane legislative procedure is now at the forefront of a public debate that has raised accusations of executive arrogance, been defended as efficient law-making, and for our purposes, is begging questions of constitutional propriety. In this post, I look at the specific legal question of whether the role and conduct of the Speaker in classifying bills as ‘money bills’ is open to judicial review; this very issue is presently before the Supreme Court of India in Jairam Ramesh v. Union of India, as it hears a petition by a former cabinet minister who has challenged the passing of the Aadhaar Act, 2016 as a money bill, among other things. The question is important, because under the Constitution, the Rajya Sabha cannot exercise its customary legislative veto upon money bills. Consequently, the Speaker’s decision to classify a bill as a money bill or not has important ramifications.

It is true that in two recent cases, Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Yogendra Kumar Jaiswal v. State of Bihar, the Supreme Court has held that the Speaker’s decision is not subject to judicial review. However, this post seeks to locate these judgments within the broader jurisprudence of the Supreme Court, with which they appear at odds with. The present petition offers the Court a rare opportunity to unambiguously articulate its position with sufficient reasoning, while acknowledging consequential implications, whichever way it rules.

Article 110 of the Constitution defines a money bill, and sets out six specific subjects which a money bill might cover (imposition of taxation, regulation of government borrowing etc.), so as to merit such classification, as well as any matter that is “incidental” to those six subjects. This is an exclusive list. Clause (3) provides that whenever any question arises to the propriety of classification under article 110, the decision of the Speaker of the Lok Sabha shall be final. However, the question remains: does the finality of the Speaker’s decision necessarily oust the jurisdiction of the courts? Article 122 explicitly bars courts from inquiring into the proceedings of Parliament. As the text of clause (1) suggests, this bar applies to any question on the ground of “irregularity of procedure”. The Supreme Court has, on several occasions, opined on the contours of this restriction.

In M.S.M Sharma v. Dr. Shree Krishna Sinha, it was affirmed that legislative business cannot be invalidated even if they are not in strict compliance with the law. As Chief Justice Sinha observed, these issues fall within the realm of what is a ‘special jurisdiction’ of the legislature – to regulate its own business; and the general rule is one of non-intervention. Historically at common law, this was also a privilege extended to Parliament and its officers, such as the Speaker. The powers of expulsion, censure, contempt et cetera are freely exercised by the UK Parliament without the threat of judicial review. However, the guiding principle of Indian law is constitutional supremacy, not parliamentary supremacy. For this reason, Indian jurisprudence has not been as kind to power unchecked by other branches of government. It has been repeatedly clarified in cases such as State of Rajasthan v. Union of India that the Constitution is ‘supreme lex’, which limits the authority of each branch, including that of the legislature. Judicial review offers an invaluable tool in checking Parliamentary belligerence, and this role is integral to the Indian constitutional scheme, as clarified by the Court in Sub-Committee on Judicial Accountability v. Union of India. From these cases, what is clear is this – the affairs of a legislature are generally the domain of that legislature alone, while the judiciary could play a significant role in review if the former strays from its constitutional circumscriptions.

For more guidance on what that potential role could be, we may look to Keshav Singh’s case. It held that while legislative bodies are not subject to judicial control as far as their internal procedures are concerned, there are certain caveats to such a proposition. It was held that a court of law may question legislative procedure if the impugned action rests not on mere irregularity, but from an ‘illegality’ or ‘unconstitutionality’ of procedure. In Ramdas Athavale v. Union of India, the Supreme Court extended that standard to article 122, as it pertains to procedural actions of Parliament. More tellingly, in Raja Ram Pal v. Speaker, Lok Sabha, the Court had applied this standard to article 105 (3), which sought to import those privileges, powers, and immunities enjoyed by the House of Commons into the Indian scheme (as an interim measure, until the Indian Parliament itself legislates on those matters). This case dealt with the expulsion of certain members of Parliament, by the Speaker. A plain reading of this clause and Parliamentary practices in the House of Commons might suggest a finality to procedural decision of the Speaker in confirming the expulsion, in terms that are analogous to article 110. The Court however noted that the Indian Constitution did not provide for expulsion as a means to effect a vacancy in the house, and the procedure was therefore illegal and unconstitutional, rather than merely irregular. The Speaker’s decision was held to be open to judicial scrutiny, and the expelled members were reinstated by the Court.

Given this precedential matrix, the question now turns to whether the decision of the Speaker to classify a bill as a money bill under article 110 amounts to a procedural matter; and even if it does, whether patently erroneous classification would amount only to mere irregularity of procedure. In Siddiqui, the Court considered a controversy with regard to identical provisions of the Constitution pertaining to state legislative assemblies. Here, the Court validated the finality of the decision of the Speaker, with only a passing reference to the rule clarified in the wealth of cases before it, and dismissed them without any substantial scrutiny. It did not offer any reasoning for this conclusion – in fact, it refrained from attempting to make the crucial link between irregularity of procedure and judicial review. The Court merely reiterated the text of article 110 (3), despite the broader avenue of intervention that has existed as far back as Keshav Singh.

More recently in Jaiswal, the Supreme Court reaffirmed the holding in Siddiqui that any decision of the Speaker in this regard, however flawed, could only amount to a “mere irregularity”, and thus outside the ambit of judicial review. Despite seemingly settling the question once and for all, closer scrutiny shows that the only source relied upon to this end is the conclusion in Siddiqui itself. It does not offer any independent assessment of the issue or unique reasoning – to say, ‘because Siddiqui said so’, holds value only if Siddiqui had done so on solid legal grounding in the first place. To that end, the Court missed an opportunity to detail the reasoning that informed its conclusions, particularly in light of the remarkable consequences of its decision. As anecdotal evidence from oral proceedings in the Ramesh case seems to suggest, the Court does not appear to be inclined to let blatant mischaracterisation go unchecked; Khehar CJ is reported to have observed, “If the Speaker says blue is green, we will tell her that blue is blue and not green”.

The Rajya Sabha is the indirectly-elected, upper-house of the bicameral Parliament of India. As such, it was envisaged to be an active participant in the legislative process – among other things, it would be consultative, advisory, and contributory towards law-making, without being subject to the vagaries of electoral politics. These features are supposed to, in theory, improve the quality of laws that are enacted by acting as a check on the untrammelled legislative intentions of the directly-elected, lower house of Parliament. With respect to ordinary legislation (i.e. non-money bills), the Rajya Sabha finds itself on equal footing with the Lok Sabha, as the former’s views cannot be ignored by the latter since the passing of such a bill by both houses of Parliament is the sine qua non of becoming law. On the other hand, once classified as a money bill, the Rajya Sabha’s legislative role is severely inhibited by reducing it to an advisory position – advice that is not binding on the Lok Sabha.

If the Court is to yet again affirm the conclusions of Siddiqui and Jaiswal in the forthcoming Ramesh case, unthinking reliance on those two cases would be another opportunity wasted as it does not truly answer the question of whether an erroneous certification of money-bills, as such, merely amounts to procedural irregularity. The Court must offer clear reasons as to why patently improper decisions by the Speaker does not amount to any of the other substantive flaws laid down in Keshav Singh and Pal. The obligation on the Court is to show why our constitutional scheme envisages the vesting of so grave a power with the Speaker that may be abused or incorrectly applied, yet not meriting judicial review. The very distinction between money bills and ordinary bills, as envisaged by the incorporation of article 110 in the Constitution, harks to the expectations of a participative and involved upper house. What does it mean for our democratic institutions if this process is obviously abused to exclude the participation of the upper house?

The Court may very well hold that the text of article 110 (3) is unencumbered by other constitutional standards and that the Speaker’s conduct is beyond review. But doing so entails a significant overhaul of our expectations and the Court must have the conviction to account for the implications of such a finding. It should acknowledge that such a reiteration of Siddiqui and Jaiswal emasculates the Rajya Sabha’s legislative function, implies that the ordinary-money bill distinction is specious despite the text of the Constitution, and that the Lok Sabha is paramount in the legislative process – the Court must justify why such radical empowerment of one house alone in a bicameral Parliament is appropriate.

In the absence of such an explicit and forceful finding, the guiding principle should remain those broader grounds for review envisaged in Keshav Singh, Pal et cetera, rather than the assertions of Siddiqui and Jaiswal. The Supreme Court may very well follow Siddiqui and Jaiswal, but it should also take care to detail the contours of such a deviation from the collective wisdom of its earlier jurisprudence on judicial review of legislative procedure – and contend that the Rajya Sabha is thus relegated to legislative redundancy. Bereft of such reasoning, the article 122 standard and the consequential extension of judicial review to the Speaker’s decision under article 110 appears more constitutionally sound.

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The (Hoary) Roots of Vagueness

When, in 2015, the Supreme Court handed down its judgment in Shreya Singhal vs Union of India, it was celebrated for many reasons. One of them was that the Court’s invocation of vagueness – along with the chilling effect – as a ground for striking down Section 66A of the IT Act represented an important conceptual breakthrough. While in Baldeo Prasad (1960) the Supreme Court had struck down a law criminalising “goondas” on the basis that it did not define who a “goonda” was, in K.A. Abbas (1970) the Court had admitted that in certain circumstances vagueness might make a statute void, and in Kartar Singh (1994) the Court had more or less imported the concept of void-for-vagueness from American jurisprudence, Shreya Singhal was believed to be the first time that the Court actually struck down a speech-restricting statute for being unconstitutionally vague.

Apparently not. It turns out that the origin of the vagueness doctrine in the context of speech-restricting statutes is far older than 2015; in fact, it goes back to 1951, to the beginnings of our constitutional jurisprudence, and a good two decades before the classic American judgment on the point, Grayned vs Rockford.

The case is State of Bombay vs F.N. Balsara, which is part of the constitutional canon, although for very different reasons. We know of Balsara because of its upholding of prohibition, its exposition of the doctrine of pith and substance in determining legislative competence, and its restatement of the classification test under Article 14. However, there was also an Article 19(1)(a) issue in Balsara, which the Court dealt with in a terse paragraph towards the end of its judgment. Not only did the Bombay prohibition law ban liquor, it also penalised people – and advertisements – which would “commend, solicit the use of, or offer any intoxicant or hemp” or “incite or encourage any member of the public or any class of individuals or the public generally to commit any act which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder,” [Sections 23 and 24 of the Act]

With respect to these provisions, the Court had this to say:

“Sections 23(a) and 24(1)(a) in so far as they refer to “commending” any intoxicant are said to conflict with the fundamental right guaranteed by article 19 (1) (a) namely, the right to freedom of speech and expression and there can be no doubt that the prohibition against “commending” any intoxicant is a curtailment of the right guaranteed. and it can be supported only if it is saved by clause (2) of article 19 which, as it stands at present, provides that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.” It seems to me that none of the conditions mentioned in clause applies to the present case, and therefore the provisions in question must be held to be void. Section 23 (b) must also be held to be void. because the words “incite” and “encourage” are wide enough to include incitement or encouragement by words and speeches and also by acts. The words “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” are so wide and vague that it is difficult to define or limit their scope. I am therefore in agreement with the view of the High Court that this provision is invalid in its entirety. So far as article 24(1)(b) is concerned the judgment of the High Court in regard to it cannot be upheld. The learned counsel for the petitioner also conceded before us that he was not going to assail this provision.”*

While the major premise of the Court’s argument was that there was no sub-clause under Article 19(2) that could be used to justify prohibiting the “commending” or “encouraging” or “inciting” the sale and consumption of alcohol, it also made it clear that in any event, the gravamen of the offence – “frustrating or defeating the provisions of the act” – consisted of such vague terms, that the provision could not be sustained under Article 19(2). Interestingly, the Court also gave a nod to a concept often associated with vagueness in free speech jurisprudence – that of overbreadth – when it noted that the impugned words “are so wide and vague that it is difficult to define or limit their scope.” The issue of definition speaks to vagueness, while the issue of limit speaks to over-breadth (i.e., when a statute is worded so broadly that it ends up prohibiting speech that may constitutionally be restricted, as well as speech that may not).

Consequently, six decades before Shreya Singhal, a Constitution Bench of the Supreme Court had already struck down a speech-restricting statutory provision on grounds of over-breadth and vagueness. This conceptual advance, however, was largely forgotten in the intervening years (Abbas makes no reference to Balsara), and Balsara is never taught as a free speech case.

It does make you wonder, though, about how many hidden gems are lying scattered about in the Constitution Bench decisions from the 1950s. Chintaman Rao’s exposition of over-breadth was forgotten until Shreya Singhal resurrected it in 2015; In Re Kerala Education Bill’s doctrine of unconstitutional conditions was cited once in a concurring opinion in Ahmedabad St Xavier’s Education Society, but has been submerged ever since; Basheshar Nath’s invitation to develop a theory of fundamental rights as constituting an objective order of values, following German jurisprudence (via the doctrine of waiver), has never been seriously taken up; and of course, Balsara’s account of vagueness has been lost to the canon. All these judgments were delivered by benches of five judges or more, and consequently, remain good law.

How might the jurisprudence of 2017 be affected if the jurisprudence of the 1950s was to be taken seriously once more?

*Notice also that for the Court, the question of finding limitations upon free speech imported from outside 19(2) don’t even arise (much as they didn’t arise in its 1960 judgment in Sakal Papers). This is a good indication of why a two-judge bench’s recent framing of issues pertaining to whether Article 21 can “limit” 19(1)(a) is entirely misguided; the two-judge bench is bound by the Constitution Benches in Balsara as well as in Sakal: restrictions upon free speech are not to be imported form beyond Article 19(1)).

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Filed under Chilling effect, Free Speech

Equal Pay for Equal Work: Statute and Constitution

On March 28, a two-judge bench of the Supreme Court remanded Chemical Mazdoor Panchayat vs Indian Oil Corporation for a fresh decision by the High Court of Gujarat. The original decision under appeal, Indian Oil Corporation vs Chief Labour Commissioner – raised a crucial question of the interplay between the constitutional principle of equal pay for equal work, and the statutory guarantee contained in Rule 25(2)(v) of the Contract Labour (Regulation and Abolition) Rules of 1971, framed under the Contract Labour (Regulation and Abolition Act) of 1970.

Before the High Court of Gujarat, the issue, briefly, was whether various contract labourers, including cooks, sweepers, and gardeners, who were working in the premises of the Indian Oil Corporation, were entitled to equal wages, on parity with permanent employees. The Gujarat Mazdoor Panchayat – the representative union of the workmen – made their first reference to the Labour Commissioner on this issue in 1994. After a few rounds of litigation, in 1992, the Labour Commissioner found that the work done by the contract labourers, and the permanent employees, was “same or similar”, and consequently, Rule 25(2)(v) of the CLRA Rules was applicable. This order was challenged, and eventually, in 2013, a division bench of the Gujarat High Court issued notice, observing that the Commissioner was wrong in taking into account only the nature of work:

“… if only apparent work is to be seen without ignoring the quality and capability of the person concerned, based on his qualification, experience, etc., such would frustrate the basic requirement. The essential purpose of Rule 25 is to ensure that there is no exploitation by the principal employer by engaging person through contract labourer, but that does not mean that the other requirements of qualification, experience, quality of work, nature of the work, responsibility and the accountability for the work are to be done away.”

Subsequently, on 8th May 2014, the High Court set aside the order of the Labour Commissioner, holding that the source, mode of recruitment/appointment, nature of work, value judgment, responsibility etc. – and not only similarity in designation or quantum of work – was relevant for equating two sets of employees. In this case, the regular employees were recruited through a written examination, and were required to have certain qualifications, which the contract labourers didn’t. Consequently, there was no obligation of equal pay. It was against this judgment that the labour union approached the Supreme Court, and the case – as observed above – has now been remanded on the question of the status of the contract labourers.

The issue, however, is an important one. Let us look closely at Rule 25(2)(v) of the CLRA Rules. This Rule states:

“In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishments, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.”

It is obvious that, under the CLRA Rules, parity between contract labourers and regular employees is dependent only on whether they perform “the same or similar kind of work.” Where then does the High Court get “mode of recruitment”, qualifications, and the like from? The answer, paradoxically, lies in the constitutional jurisprudence of equal pay for equal work.

The Supreme Court first constitutionalised the right to equal pay for equal work – which is Directive Principle 39(d) in the Constitution – in a 1982 judgment called Randhir Singh vs Union of Indiathe Supreme Court grounded equal pay for equal work in Article 14 of the Constitution, and observed that in cases where all “relevant considerations are the same“, the government could not deny equal pay simply by performing the bureaucratic manoeuvre of splitting the workforce into different posts, or different departments. In that case, because “there cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government“, equal pay for equal work was attracted.

The focus on the “same functions and duties” resembles the language of the CLRA – “same or similar work“. However, in the years after Randhir Singh, the Supreme Court progressively walked back on the broad principles that it laid down in 1982. In a number of judgments in the 1990s and the 2000s, the Court effectively gutted the principle of equal pay for equal work, incorporating into it the multiple additional aspects referred to by the Gujarat High Court – including mode of recruitment, qualifications etc (see e.g., State of Haryana vs Charanjeet Singh). Equality of work was no longer about the manner or character of the work, but much more about the relative positions of the workers. In other words, the Supreme Court effectively converted equal pay for equal work from a constitutional principle requiring effective equality, to a service law principle that focuses on the prerogative of employers to create hierarchies of posts in their workforce, by splitting it up into different cadres, departments, etc.

Rule 25 of the CLRA Rules, however, remained in its original form, still using the phrase “same or similar kind of work.” This leads to the following paradoxical position: Rule 25 of the CLRA Rules – textually – embodied a broader idea of equal pay for equal work, then did the Constitution (through Articles 14 and 39(d)). The Gujarat High Court resolved the contradiction by holding that Rule 25 had to be read in light of the Constitution, and that consequently, despite its focus on the character of work, it would be the constitutional understanding of equal pay for equal work – that took into account both the work and the worker – that would apply even to Rule 25. The Gujarat High Court relied upon the one Supreme Court judgment on the point – U.P. Rajya Vidyut Utpadan Board vs U.P. Vidyut Mazdoor Sangh. In that case, while discussing whether contract labourers at a filtration plant were entitled to equal pay with permanent employees, the Supreme Court held, with respect to Rule 25:

“Nature of work, duties and responsibilities attached thereto are relevant in comparing and evaluating as to whether the workmen employed through contractor perform the same or similar kind of work as the workmen directly employed by the principal employer. Degree of skill and various dimensions of a given job have to be gone into to reach a conclusion that nature of duties of the staff in two categories are on par or otherwise. Often the difference may be of a degree. It is well settled that nature of work cannot be judged by mere volume of work; there may be qualitative difference as regards reliability and responsibility.” (paragraph 10)

This paragraph, however, is ambiguous at best. “Degree of skill” could be taken to refer to the skill required to do the job (qualifying “work”), or the level of skill that is a pre-condition for permanent employment (qualifying “worker”). In the case itself, there was no controversial issue over differential recruitment qualifications; the Court’s decision was based on the fact that the Labour Commissioner, in mandating equal pay for equal work, had failed to take into account the evidence presented before him; this evidence, referred to in paragraph 12 of the judgment, included differences in both the nature of the work, and the recruitment qualifications. After extracting this, the Court noted, in paragraph 13, that:

“Despite such a specific case set up by the present appellants before the Labour Commissioner to show that the contract labour in filtration plant engaged through the contractors do not perform the same or similar kind of work as is done by the employees employed directly by the employer in main plant, the Labour Commissioner did not advert to these aspects at all. The Labour Commissioner ought to have adverted to the nature of duties of the staff in the two categories, degree of skill and dimensions of the job for reaching the conclusion that the work done by the contract labour in the second filtration plant is same or similar to the kind of work done by the employees employed by the principal employer directly in the main plant. There is no discussion at all by the Labour Commissioner as to how he arrived at the conclusion about similarity of work. The evidence let in by the parties and the material placed by them seem to have not at all been considered by the Labour Commissioner.” 

Here, in fact, the Court seems to be leaning more towards the similarity of work, than that of the workers. Consequently, UP Rajya Vidyut Utpadan Board is not authority for the Gujarat High Court’s view that Rule 25 of the CLRA Rules is to be read “in light” of the Constitution, and of its view that the constitutional jurisprudence of equal pay for equal work is to be imported into Rule 25.

Independent of precedent, however, the question remains: was the Gujarat High Court right in doing what it did? In my view, it was not. Of course, it is a very standard principle of interpretation that statutes are to be construed “in light” of constitutional principles and values. There are two reasons, however, while that interpretive technique ought not to be applied in interpreting Rule 25. The first is that the constitutional jurisprudence of equal pay for equal work is grounded in Article 14 of the Constitution, which lays down the abstract concept of equality. The concept of equality is consistent with many separate, more concrete, conceptions of what equality might require in a specific fact situation. In terms of parity of pay, one conception is that of the Supreme Court, which focuses on both the nature of the work, and the character of the worker. The other is that of Rule 25, which focuses only on work. Both these are equally valid conceptions of the principle of equality, as applied to “equal pay for equal work”. Consequently, importing the Supreme Court’s constitutional jurisprudence of equal pay for equal work into Rule 25 is not so much as reading the latter “in light” of the Constitution, but substituting the Court’s specific conception of what equal pay for equal work and equality require, with the legislature/executive’s equally valid conception of the same abstract principle.

Secondly, reading statutes “in light” of the Constitution has a specific purpose: ordinary statutes (as well as common law, for that matter, as was held by the Supreme Court in Rajagopal) ought not to set a lower bar for protection of rights than what the Constitution requires. However, the Constitution only establishes a floor for rights-protection, not a ceiling. It is surely open for Parliament to go beyond the Constitution, and establish a higher threshold for rights-protection than what the Constitution requires. This is exactly what Rule 25 does: by limiting the enquiry to the nature of work, it ensures that contract labourers who are claimants for equal pay have to demonstrate only that they are engaged in substantially similar work to that of the permanent employees; correspondingly, the wiggle room for employers is substantially limited, by ensuring that they cannot get around the obligation by simply stating that the contract labourers have come through a different recruitment process.

In fact, any other reading of Rule 25 would defeat its very purpose, because contract labourers, by definition, are engaged through a contractor, and not through the main recruitment process. If the Supreme Court’s reading of the “constitutional jurisprudence of equal pay for equal work” is imported into Rule 25, then claimants for equal pay will first have to show that the contract was a sham and a fraud, and that they are effectively permanent employees; however, if that was the burden upon such claimants, then a separate Rule 25, guaranteeing equal pay for similar work, would be more or less redundant.

For these reasons, it is submitted that the Gujarat High Court was arguably incorrect in reading Rule 25 of the CLRA Rules as importing the “work plus worker” formulation of the Supreme Court. That reading refers to equal pay for equal work as a specific interpretation of Article 14 of the Constitution, and has nothing to do with the textual standard set by Rule 25, which is more favourable to contract labourers. While the remand to the Gujarat High Court has been on the issue of the status of the workers (contractual or otherwise), the position of law remains open.

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Filed under Equal Pay for Equal Work, Labour Law and the Constitution