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

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

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

The Opinion of Shakder J

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

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

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

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

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

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

The Opinion of Hari Shankar J

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes

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

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

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

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


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

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

[This is a guest post by Shreyas Alevoor.]


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

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

Decisional autonomy

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

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

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

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

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

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

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

Reading group privacy into Puttaswamy

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

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

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

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

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

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

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

From Chelameswar, J.’s concurring opinion:

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

Consider then the following line of argument:

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

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

Conclusion

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

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

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

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

Introduction

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

Essential Religious Practices

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

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

Freedom of Expression and Privacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Non-Discrimination

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

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

Addendum: A Case of Conscience

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

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

Conclusion

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

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

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

The scope, thus, is limited to classrooms.

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

Guest Post: The Right to Love and the Right to Leave – Recognising Autonomy through Unilateral No-Fault Divorce

[This is a Guest Post by Shraddha Chaudhary and Shreedhar Kale.]


Thappad (2020) began an important conversation about the inequality and everyday violence that often defines women’s experiences within the institution of marriage. It highlighted the need to interpret fault-grounds liberally, so that ‘just a slap’ would be sufficient proof of cruelty. However, this does not go far enough to recognise the autonomy and dignity of the individual in marriage. The right to dissolve a marriage should not be beholden to proof of ‘fault’ any more than the right to marry should require reasons for the union.

Marriage is considered the cornerstone of family life in India. Unsurprisingly, therefore, Indian divorce laws, whether religious or secular, seek more to preserve marriage, than to facilitate separation. With the exception of certain forms of unilateral repudiation available to a Muslim husband, divorce can ordinarily be obtained either through mutual consent, or by proving one of the listed grounds of ‘fault’, such as adultery, desertion, cruelty etc. In this post, we argue that the autonomy of the individual in marriage will not be truly recognised until Indian divorce law provides the option of unilateral no-fault divorce. Exercising such an option, an individual may unilaterally divorce their spouse, without the need to prove fault or irretrievable breakdown of marriage, or to obtain the consent of the spouse. We discuss the vital constitutional concerns that arise from the legal conditions governing the dissolution of marriage, due to the unique social and symbolic significance of the institution. We also demonstrate how these conditions constitute an unreasonable restriction on the autonomy of the individual, under Article 21, to dissolve a marriage.

Marriage as a Constitutional Concern

Why should the legal conditions of the dissolution of marriage be a constitutional concern? The answer lies in the special place that marriage occupies in Indian social tradition, as well as in the lives of individuals. First, while marriage may formally be a choice, it would be far from accurate to suggest that this choice is, in fact, exercised freely by those who enter the marriage institution. In 2015-16, for instance, 27% of married women aged 20-24 had been married before the age of 18, and 7% before the age of 15. This indicates that millions of women currently in the institution of marriage were not even legally competent to exercise their choice to enter that institution.

Secondly, in the absence of civil partnerships or formal cohabitation, marriage enjoys a legal monopoly over formalisation of intimate relationships in India. This means that a couple is faced with an unpleasant binary. On the one hand is informal cohabitation, which has minimal legal protection and almost no rights. On the other is marriage which, while granting legal rights and social sanction, triggers an onerous legal regime that may keep parties tied together long after the intimacy has died, and often in circumstances of grave emotional, physical and sexual abuse. Fewer than 1% of Indian women aged 41-49 have never been married. In light of the systemic and structural gender inequalities that plague the institution of marriage, it would be naïve to read this to mean that marriage is a popular ‘choice’. In fact, the difficulties of navigating social spaces, the fear of social ostracism, the denial of legitimacy, and the loss of legal protection create pressures so overwhelming that non-marriage is often not a viable option.

Thirdly, and most importantly, however, marriage is a constitutional concern because of the essential symbolic role it plays in the lives of individuals. Marriage has, for centuries now, been integral to the human experience, an important part of the aspirations of human beings. It provides access to symbols which help shape identities, and sanctify intimate relationships that give meaning to people’s lives. To say, then, that marriage is not an Article 21 concern as long as a person may simply choose not to marry, therefore, is like saying that criminalisation of anal-sex is not an Article 21 concern because gay men may simply choose not to have sex. Certainly, the prima-facie choice exists, but forcing people to make that choice cuts at the foundation of human dignity.

Even assuming that marriage is indeed a choice that can freely be exercised without compromising human dignity, we believe it would still be a constitutional concern. This is because it is a legal institution that, in its present form, infringes the autonomy and dignity of the individual at the point of its dissolution, and therefore, violates constitutionally affirmed and protected rights.

Divorce Laws as Barriers to Individual Autonomy

The Supreme Court of India has, time and again (see Puttaswamy, Shafin Jahan, Shakti Vahini , and Navtej Johar) affirmed the autonomy and privacy of the individual in choosing whom to marry, whom to love and how to love. This negative right of non-interference essentially bars the state and society from dictating or infringing on these decisions. In Navtej Johar, in fact, the Court went further to recognise the role of this autonomy as constitutive of individual identity. The pride of place enjoyed by autonomy in creating relationships, including marriage, contrasts sharply with its conspicuous absence in ending formal relationships. Where a marriage is no longer a positive constituent of a person’s identity, ceases to be a source of love or intimacy, or simply fails to meet her expectations, the end of this marriage should need nothing more than her personal decision to exit it. A system that requires a person to justify this decision within the paradigm of arbitrary legal pigeon-holes, and to assign blame where none might lie, severely undermines the autonomy she enjoyed when entering the very same relationship.

Tying the dissolution of marriage to proof of fault in this manner also attacks the dignity of the individual. To fall in love and out of it, to have sex and stop having it, and in the same vein, to enter a marriage and exit it are intimate choices, intrinsically linked to a person’s imagination of herself, and to her most personal boundaries. Such choices should not be subservient to the satisfaction of subjective legal standards, or even to legal adjudication. This extends beyond fault grounds to mutual consent divorce. The relational rights that undoubtedly arise from marriage, such as the right to maintenance or child-support, are not contingent on the subsistence of the marriage. Therefore, the decision of one spouse to dissolve the marriage should not be contingent on the consent of the other. Similarly, it encompasses irretrievable breakdown, which has come to be an ad-hoc measure adopted by the Supreme Court to grant divorce in cases where the relationship is ‘beyond salvage’. Though no longer beholden to grounds of fault, divorce based on irretrievable breakdown still subjects individual autonomy to adjudication, and the satisfaction of the legal standard that the ‘marriage has broken down beyond repair’.

Simply put, the autonomy to enter the institution of marriage is incomplete and meaningless unless it is accompanied by the autonomy to freely and without ‘reason’, exit it, that is, through unilateral no-fault divorce.

Unilateral, no-fault divorce was the subject of constitutional scrutiny by the Supreme Court of India in Shayara Bano, where the Court held talaq-i-biddat (unilateral, irrevocable divorce on demand by a Muslim man) unconstitutional. Of the majority which affirmed this position, Joseph J., based his decision largely in theology, while Nariman and Lalit JJ. misidentified the ‘wrong’ of triple talaq. As this blog rightly argues, talaq-i-biddat was unconstitutional mainly because it discriminated on the basis of sex (Article 15), and not so much because it was manifestly arbitrary (Article 14). We believe that such discrimination is not a necessary consequence of unilateral no-fault divorce, but was a product of the circumstances in which talaq-i-biddat was practiced. It arose from the fact that the option of unilateral divorce was available only to men, and, more importantly, that there were no safeguards against the financial hardships that divorced women faced.

It is possible, therefore, to have an option of no-fault divorce that is not discriminatory. This would be done, first, by extending the right equally to both parties, regardless of gender, and secondly, by ensuring that the financial and material needs of the divorced woman are adequately met, either by her ex-spouse or by the state.

Fault-Based Divorce: An Unreasonable Restriction to Article 21

A constitutional challenge to the absence of unilateral no-fault divorce is likely to be met with strong opposition from various sections of society, including the State. The State has, in other issues relating to the marital sphere, such as marital rape, prioritised the ‘preservation of the institution of marriage’ over the rights of the parties, particularly women, in the marriage. The State would likely defend the status-quo of fault-based divorce as a reasonable restriction on the autonomy of an individual under Article 21. According to Puttuswamy II, “…a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).”

Do arguments in favour of fault-based divorce as a reasonable restriction meet these criteria?

Legitimate Goals Stage

  1. The State has consistently claimed that the stability of the marriage institution is a legitimate State interest. Such an interest would arguably be threatened by a system that allows ‘arbitrary’ or ‘capricious’ divorce on demand. Therefore, the State may claim to have an interest in ensuring the indissolubility of marriage, or at the very least, in setting legal standards that prima facie disincentivise parties from dissolving the marriage.
  2. Additionally, it may be argued that the restrictions on divorce are meant to safeguard the interests of women and children in the event of an ‘arbitrary’ divorce.

First, it is possible to reject the State’s interest in the institution of marriage on the ground that decisions related to marriage and family relationships, being protected private choices, are not the appropriate domain of the State, except in limited circumstances. However, given that this interest has come to be constitutionally recognised, we choose not to contest this claim, given the limited scope of this post. Similarly, we also concede that the broad aim of protecting the rights of women and children is a legitimate aim of the State.

Notwithstanding this, we argue that fault-based divorce has no rational connection with these legitimate interests, and given the availability of a less restrictive but equally effective option, cannot be termed a necessary restriction.

Rational Connection Stage

Under the proportionality standard, once an infringement of a right is established, the burden of justification shifts to the State. The rational connection between prohibiting no-fault divorce and maintaining the stability of the marriage institution is, therefore, for the State to establish. On closer scrutiny, however, it can be seen that no such clear rational connection exists.

Marriage is not indissoluble in India, even if fault-based divorce does often make the process so protracted and cumbersome as to disincentivise divorce. However, this does not ensure the ‘stability’ of marriage unless the only metric of ‘stability’ is longevity. Arguably, if marriage is to serve as the cornerstone of family life, the test of its stability should be its strength and quality. A marriage that is long-lasting, but devoid of emotional value for one or both parties, and perhaps even marked by prolonged conflict or violence, cannot possibly be a reliable or stable foundation for family life. It is also arguable that a system that connives to keep people in a marriage by making its dissolution unnecessarily complex and onerous does a disservice to the institution of marriage.

Unilateral, no-fault divorce, on the other hand, has the potential to strengthen the institution of marriage by ensuring that those who remain in it do so because of the value it adds to their lives rather than the legal barriers to its dissolution. Moreover, no-fault divorce is no more ‘arbitrary’ or ‘capricious’ than fault-based divorce. Given the complexities of the human experience, especially in a sphere as intimate as marriage, no classification of fault grounds can ever hope to be comprehensive. In light of this, a legal regime that forces individuals to ensure that their narratives kowtow to the pre-determined grounds of fault available to them, is in itself arbitrary.

The purported interest in protecting women and children is, similarly, not advanced by fault-based divorce. This is for three reasons:

First, the underlying presumption of this interest, that the option of no-fault divorce would primarily be exercised by men against women, is erroneous. Considering the inequality and gendered violence that often marks marriage, such an option would, in fact, provide women an easy means of liberation. The expensive and adversarial process of litigation in fault-based divorce can exacerbate conflict, especially since the very purpose of the litigation is to find fault with one’s spouse. In cases involving physical, mental or sexual abuse, such litigation may also revictimize an abused woman. Faced with such a system, women may, in fact, be compelled to stay in abusive or exploitative relationships.

Secondly, while it is true that divorce is a traumatic experience for a child, the dangers of living in a household steeped in conflict, and possibly violence, over extended periods of time, should not be ignored either. It would be potentially more damaging for a child to be caught in the protracted crossfires of divorce litigation than to simply be from a divorced household.

Finally, the only way in which the State can seek to safeguard the interests of women and children in the event of a divorce is to ensure that the financial and material needs of women and children are adequately provided for. However, this need not be linked to the method of divorce, and can be determined separately.

Therefore, fault-based divorce does not further either of the State’s aforementioned interests, whether in ensuring the stability of marriage as the foundation of family, or in protecting the rights of women and children in the marriage.

Necessity and Balancing Stages

Unilateral no-fault divorce with adequate safeguards for the protection of vulnerable parties (as previously discussed) is far better suited to achieving the aims of the State, while simultaneously causing less infringement to the autonomy and dignity of individuals at the stage of dissolution of marriage, compared to fault-based divorce. Given this less infringing and equally efficacious alternative, fault-based divorce cannot reasonably qualify as a necessary restriction.

As regards the possible claim that fault-based divorce does not disproportionately impact those seeking divorce, the foregoing discussion on the autonomy-infringing effects of fault-based divorce would, we believe, suffice to negate the claim.

From the above, it is evident that the absence of an option of unilateral no-fault divorce amounts to an unreasonable restriction on the fundamental right to dignity and autonomy under Article 21. The only question that remains, therefore, is how the Supreme Court ought to adjudicate on the matter if such a challenge is brought before it.

Creating Space for Unilateral No-Fault Divorce

Based on our arguments in this post, the absence of unilateral no-fault divorce must first be held to be violative of Article 21, recognising that the right to love and the right to leave are two sides of the same coin. The Court would then have three options. First, it could make the declaration of unconstitutionality and leave it upto the State to pass a law on the subject. However, since the Court has acknowledged its duty to correct constitutional wrongs, without waiting for a majoritarian government to bring about such change, this would not be the most suitable option.

Secondly, the Court could choose to pass guidelines, including the option of unilateral no-fault divorce in various legislations till their formal enactment by Parliament, as in Vishaka. Thirdly, it could direct the Government to amend the relevant laws to include this option, as in NALSA. Of these, it appears that the second option would be the least objectionable. Given the orthodox position of the state on marriage, it is likely that the declaration would be ignored, as in Prakash Singh. Therefore, guidelines created by the Court would serve as an appropriate interim measure, ensuring that the declaration is not reduced to empty words. However, this option should be exercised consultatively, keeping in mind that the operationalisation of unilateral no-fault divorce must be based on empirical data on the patterns of divorce, custody and maintenance litigation in the country, lest we risk the remedy being worse than the ailment.

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

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

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

Article 14 and Genetic Discrimination

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

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

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

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

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

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

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

Uncertainties over Horizontality

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

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

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

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

Legal Interpretation in the Shadow of the Constitution

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

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

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

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

And:

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

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

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

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

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

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

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

Indirect Discrimination

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

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

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

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

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

The Supreme Court’s Right to Privacy Judgment – V: Privacy and Decisional Autonomy

The Supreme Court changes its mind frequently, often holding that its own previous judgments are no longer good law. It is rare, however, for the Court to reverse itself in a case where the correctness of a prior judgment was not at issue, and was not argued by counsel. For that reason, the Puttaswamy plurality’s castigation of the Supreme Court’s 2013 judgment in Koushal vs Naz Foundation – which recriminalised homosexuality – is particularly important. It is important because, in singling out Koushal as a judgment that got things badly wrong, the plurality (supported by observations from Justices Chelameswar and Kaul) gives us an insight into not only into the abstract formulation of decisional autonomy as an aspect of privacy, but also into how it might be applied in concrete cases.

The Formulation of Decisional Autonomy

Decisional autonomy is the one aspect of privacy that overlapped precisely across the formulation adopted by Justices Chandrachud and Nariman, and the slightly different formulation endorsed by Justice Chelameswar. Justice Chelameswar’s three-pronged definition of privacy consisted of “repose, sanctuary, and intimate decision” (para 36). Elaborating upon the third aspect through examples, he cited “… the choice of people regarding the kind of literature, music or art which an individual would prefer to enjoy” (para 37), “an individual’s rights to refuse life prolonging medical treatment or terminate his life” (para 38), “a woman’s freedom of choice whether to bear a child or abort her pregnancy” (para 38), “the freedom to choose either to work or not and the freedom to choose the nature of the work” (para 38), and the freedom not “to be told by the State as to what [one] should eat or how [one] should dress or whom [one] should be associated with either in their personal, social or political life.” (para 39) Many of these, readers will recall, are live issues before the Court (and Justice Chelameswar acknowledged as much).

Justice Bobde emphasised the centrality of “choice” in associative freedoms (para 31), as did Justice Nariman, who observed that the “privacy of choice… protects an individual’s autonomy over fundamental personal choices.” (para 81) This he linked further to both democracy (“… the core value of the nation being democratic… would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed…” (para 82)) and dignity and autonomy (“… the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices (para 85))

“Choice” was a central part of Justice Kaul’s opinion as well – so much so that it bookended his judgment, featuring both at the beginning (“[Privacy] is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so…” (para 10)) and at the end (“… it is an individual’s choice as to who enters his house, how he lives and in what relationship…” (para 78)). And Justice Chandrachud’s plurality formulated the right in the following terms: “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” (para 142). It then took specific example, such as compulsory sterilisation programs for women (para 157), sexual orientation (para 168), and “various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.” (para 169)

Beef and Alcohol

Between them, the separate opinions in Puttaswamy set out a rather clear exposition of decisional autonomy as a facet of the right to privacy. Furthermore, the recognition of decisional autonomy is bound to have a serious impact upon a number of cases pending before the Courts, as well as settled cases that may now be reopened. These include issues of abortion, euthanasia, food choices, sexual orientation, and so on. In this essay, I will focus on three issues that present different perspectives on decisional autonomy, and the leave the rest for readers to consider for themselves.

First, the beef ban appeals. Recall that in May 2016, the High Court of Bombay had struck down a part of Maharashtra’s Animal Preservation Act, which criminalised possession of beef brought from outside Maharashtra, on privacy grounds:

“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health… the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice… this intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21… thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone… in the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)

The State of Maharashtra appealed against this finding, and the case is due to be heard next week. In view of the clear observations of the nine-judge bench, it seems highly likely that at least this part of the judgment will be upheld. Note, however, that the Bombay High Court also upheld other sections of the Act, which criminalised sale and transport of cattle for slaughter, as well as possession of cattle flesh as a result of illegal slaughter (some of the issues were discussed on this blog, here). The petitioners before the High Court have appealed against those parts of the decision. The Bombay High Court’s judgment was based on a series of Supreme Court judgments (discussed in the blog post) which had upheld cattle slaughter bans based upon the economic necessity of the cow and cattle products such as cow dung. While that might continue to be used as a ground to justify bans on cattle slaughter, what will be now be interesting to watch is whether the provision criminalising possession of cattle flesh (that is, flesh of cattle slaughtered illegally) can survive the strong statement of the right to privacy endorsed in Puttaswamy – and whether, further, the Court’s proportionality analysis when considering cattle slaughter bans will itself undergo an alteration.

Similar considerations also apply to prohibition laws, including Bihar’s recent legislation, which was struck down by the Patna High Court (analysed on this blog here), and then stayed immediately by the Supreme Court, where one of the concurring judges had noted:

“Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink. We have to view this concept in changing times, where international barriers are vanishing. Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behaviour, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.” (paragraph 88.04)

While staying this judgment, Justice Dipak Misra (now Chief Justice of India) had reportedly remarked in court that “alcohol and fundamental rights do not go together.” Puttaswamy, however, makes it rather clear that there is no such constitutional doctrine in existence – in fact, quite the contrary. It now remains to be seen whether the fate of alcohol bans will be different.

Sex Work

The Immoral Traffic (Prevention) Act of 1956 regulates sex work in India. Section 20 of this Act states that:

“A magistrate on receiving information that any [person] residing in or frequenting any place within the local limits of his jurisdiction, is a prostitute, may record the substance of the information received and issue a notice to such [person] requiring him to appear before the magistrate and show cause why he should not be required to remove himself from the place and be prohibited from re-entering it.”

When a previous variant of this was challenged before the Supreme Court in 1964, it was upheld on the following basis:

“The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an overcrowded town or in a place within the easy reach of public institutions like religious an educational institutions. Though both sell their bodies, the latter is far more: dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deportation. The object of the Act, as has already been noticed is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitutes from busy public places in the vicinity of religious and educational institutions.”

If privacy includes decisional autonomy, however (and as Justice Chelameswar correctly pointed out, decisional autonomy includes choice of work), then surely there exists no a priori moral difference between someone who is a “prostitute” and someone who is engaged in any other occupation. There is, therefore, at least a prima facie constitutional violation when a Section singles out sex workers alone, and makes them liable for “removal” from a place at the instance of a Magistrate.

Admittedly though, in upholding the Section, the Supreme Court focused primarily on the relationship between sex work and (the deterioration) public morals. And it is in this context that we must now turn to Puttaswamy’s rejection of Koushal vs Naz.

Sexual Orientation

Justice Chandrachud’s plurality opinion referred to Koushal vs Naz as “a discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” (para 124) To substantiate this, he cited Koushal’s infamous line about “the so-called rights of the minuscule minority” (para 125), and then went on to note that Koushal was wrong because “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.” (Para 125) The plurality concluded this point by noting that:

“…  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)

The crucial point, however, is that in Koushal, the minuscule minority comment did not feature as part of the judgment’s discussion of privacy. Koushal’s “analysis” of privacy began at paragraph 45 of that judgment. It specifically acknowledged that privacy is a fundamental right under Article 21 (para 46) – and that includes the right to bodily integrity and sexual choices (para 47) –  quoted all the precedents on the point (paras 48 to 50), and then – stopped. There is no specific finding in Koushal on how Section 377 of the IPC withstands a privacy analysis. Given that the Court upheld the Section, however, it clearly survived privacy scrutiny, but not on the ground that the LGBT community had no right to privacy (because that was acknowledged by the Court in para 47 by invoking sexual choices). The only other logical possibility is that Koushal held that Section 377 justifiably limited the right to privacy.

Now, before the Delhi High Court, where the matter was heard originally, the State had advanced two justifications for Section 377 – public health and public morals. While the State did not appeal the High Court’s decision to read down Section 377, an appeal was carried by numerous religious groups, who adopted the same arguments, while focusing on morality. Public health is a purely fact-based argument, and the absence of any discussion on that point in Koushal clearly indicates that that could not have been the reason for upholding Section 377. That leaves us only with public morality.

It is here that Justice Chandrachud’s observation attains crucial significance, because he noted that:

“… the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.”

The use of both words – “legislative” and “popular” is surely no accident. If Justice Chandrachud was only referring to the proposition that the purpose of fundamental rights was to act as a check upon legislative majoritarianism, then the phrase “legislative” was sufficient. The addition of the word “popular” makes it clear that he had in mind something beyond majoritarian laws: he was, in short, referring to that amorphous concept of “public morality.” And this becomes especially important when we recall that the Delhi High Court had specifically distinguished between “popular morality” (it had, like Justice Chandrachud, used the exact word “popular”) and “constitutional morality”, and had held that only the latter could be a ground for restricting fundamental rights.

The plurality’s rejection of Koushal, therefore (with which Justice Kaul agreed), must be a rejection of the argument that public morality can be invoked to trump the fundamental right to decisional autonomy – an argument, readers will note, that the Supreme Court has often adopted, especially in free speech cases involving book bans and hurt sentiments. And in fact, that is the only sensible way of reading the separate opinions in Puttaswamy: as we have seen, all the judgments referred repeatedly to the individual’s right to fashion her own life through control over her fundamental and intimate choices. This right would, quite literally, make no sense if it could be limited on the basis of public morals, because the whole point – as Justice Chandrachud noted expressly in his plurality, was that “privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.” (para 168)

This brings us back to Section 20 of the Immoral Traffic (Prevention) Act – and indeed, a number of other laws that restrict privacy (as well as other fundamental rights) on the amorphous, shifting terrain of “public morals”. On Puttaswamy’s fashioning of the right to privacy (and decisional autonomy) as the right not to conform when it comes to intimate decision-making (and that, as we have seen, includes the right to choose your work, food choices, sexuality, and so on), whatever other ground the State might invoke to justify restrictions, it cannot invoke public morality. A lasting contribution of Puttaswamy, therefore, is to make it clear that in our constitutional scheme, individual rights cannot be constrained on the basis of pure, brute majoritarian justifications. And this – once again – is consistent with how each of the separate opinions place the individual at the heart of the constitutional order.

That it took so long for the Supreme Court to affirm something so basic is another matter. Yet, better late than never.

Postscript: As I pointed out in my initial post, Puttaswamy’s transformative potential can become a reality only if it is applied in concrete cases by the courts. In this context, the ongoing Akhila/Hadiya case before the Supreme Court is significant. This is a case where the High Court of Kerala annulled a marriage between an adult woman, who had converted to Islam, and an adult Muslim man, and directed the woman to be taken into the custody of her parents (where she has remained for the past three months, under police guard). Undoubtedly, the High Court had the power to annul a marriage if it found that it had not been conducted in accordance with law (although it is disputable whether it could have done so in a habeas corpus petition, which was what happened). However, it certainly had no power to order that she be confined to her father’s house. If decisional autonomy means anything at all, surely it means the right of an adult woman to make independent choices about residence and marriage. While the case has been heard on two occasions by the Supreme Court, both hearings were before the judgment in Puttaswamy; now that decisional autonomy has been unambiguously held to be part of the fundamental right to privacy, on the next hearing, the Court, I would submit, ought to set aside that part of the Kerala High Court order, and ensure that the promise of Puttaswamy is translated into reality when privacy is no longer an abstract problem, but rather, impacts the lives and fates of real human beings.