Guest Post: The UP Hoardings Case and Misplaced Comparativism

[This is a guest post by Shubhangi Agarwal and Harsh Singh.]


In March, the Uttar Pradesh administration had ordered the putting up of banners in Lucknow with names, photographs and addresses of more than fifty CAA – NRC protesters, asking for compensation from them for allegedly causing damage to private and public property. Observing a clear case of a breach of privacy, the Allahabad High Court took suo moto cognizance and registered a PIL against the government administration. The court rightly ruled that the actions of the state are “an unwarranted interference in privacy of people” (discussed here). However, this decision was appealed before the Supreme Court, and the apex court, after placing reliance on a UK Supreme Court judgment, ordered that the case be referred to a larger bench for consideration. This article seeks to juxtapose the crisp and timely intervention of the Allahabad High Court with the Supreme Court’s referral order and analyzes the apex court’s misplaced reliance on UK case law.

The Allahabad High Court’s swift justice

The Allahabad High Court criticised the UP administration for displaying such banners on the roads. It applied the proportionality test laid down in the Puttaswamy judgment and observed that the authorities failed it on all the three counts. Firstly, there was no law which permitted such actions. Secondly, the aim to deter mischief and recover money from protesters for alleged damage to public property was not a legitimate aim, as they were not fugitives, and there was no need to publicize their personal details. Lastly, there existed no rational nexus between the means employed and the objective sought to be achieved. Lakhs of accused persons in UP were also facing criminal trials but their personal details were never subjected to such publicity. The court even went on to remark that “the placement of personal data of selected persons reflects colorable exercise of powers by the Executive.”

The Supreme Court’s waywardness

The Supreme Court, on the other hand, shied away from its responsibilities when dealing with the same questions. It relied on a UK Supreme Court case – In the matter of an application by JR38 for Judicial Review (Northern Ireland), and referred the appeal to a larger bench. It is pertinent here to explain the facts of the foreign case to distinguish it from our case. In the UKSC case, the appellant, aged fourteen years, was engaged in rioting and his CCTV footage (taken during the course of rioting) was published in two newspapers by the police authorities. The publication was done to ‘identify’ him and to deter future disturbances. The question was whether there was a breach of privacy under Art. 8 of ECHR.

The UK Supreme Court judgment on this can be divided into two parts – the majority opinion and the minority opinion. The majority (Lord Toulson, Lord Clarke and Lord Hodge) opined that there could have been no reasonable expectation of privacy in the facts of the case, because of the nature of the criminal activity the appellant was involved in. Therefore, the appellant could not have expected non-publication of his photograph by the police for his identification. However, their conclusion that the appellant did not have any reasonable expectation of privacy was greatly dependent upon the ‘identification’ purpose of the police.

Lord Clarke, with whom Lord Hodge concurred, held that (paragraph 112):

I agree with Lord Toulson that on the facts here the criminal nature of what the appellant was doing was not an aspect of his private life that he was entitled to keep private. He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1. I would not therefore put the point quite as broadly as Lord Hope does in para 21 of Kinloch quoted above.

The minority opinion (by Lord Kerr and Lord Wilson) held that that the appellant retained a reasonable expectation of privacy primarily because he was a child at the time the photograph was taken, and factors like age, consent, and risk of stigma also play a role when determining the question of privacy. However, after applying the proportionality test, the judges came to the conclusion that the interference with the appellant’s right to privacy under Art. 8 of ECHR was justified for the same reasons as that of the majority opinion.

Lord Kerr J. with whom Lord Wilson concurred, stated (paragraphs 41 and 76):

Prima facie, therefore, the taking and use of a photograph of an individual will lie within the ambit of article 8. The essential question is whether it is removed from that ambit because of the activity in which the person is engaged at the time the photograph was taken and because the person could not have a reasonable expectation that his or her right to respect for a private life arose in those particular circumstances. The fact that the activity in which the person is engaged is suspected to be criminal will not, by reason of that fact alone, be sufficient to remove it from the possible application of article 8.

The painstaking approach taken by the police service to the objective of identifying young offenders such as the appellant has been explained by Chief Inspector Yates and Superintendent Robinson. Internal police inquiries were made; community leaders and social services were asked whether they could identify those involved; and it is ironical that the appellant and his father were shown the photograph that was later published. Had they identified the appellant, no publication would have occurred.

 

As is clearly evident from the above paragraphs, the photograph was published with the clear purpose to identify the wrongdoer; in the present case, however,, banners with personal details were put up to seek compensation from protesters for damage to public property, and to ‘name and shame’ them. There is a stark contradiction in both the objectives. These protesters were not fugitives and were not trying to bypass their interrogation and trial.

Conclusion

Only a few days before this referral order, the Supreme Court in Shah Faesal v Union of India, had remarked on judicial references. It had noted that “when substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner.” Regrettably, it failed to follow its own laid down principle. Moreover, the recovery notices which were issued to the protestors were challenged by them and the matter was already pending before the court. In such circumstances, the reference order was evidently unjustified. The result of this was that the swift justice delivered by the Allahabad High Court was derailed in the Supreme Court, in no small part because of erroneous reliance upon UKSC case law, as well as a failure to correctly apply the Puttaswamy judgment.

Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]

[This is a guest post by Aakanksha Saxena.]


In light of the continuing difficulties being faced by migrant workers across the country, and the lack of clarity on the status of shelters set up for them, this post is a critique of the Supreme Court’s 31st March Order, which approved of the steps taken so far by the Central Government, and also of the direction contained in the same Order to the media to refer to and publish the official version of the Union Government with respect to Covid-19.

Two Civil Writ Petitions were filed by advocates practising in the Supreme Court, in light of the dire difficulties being faced by the large number of migrant workers / labourers across India, as a result of the nationally imposed lockdown to battle the spread of Covid-19. The lockdown was announced by the Prime Minister on 24th March 2020, and continues to be operational, for a period of 21 days. The petitions, inter alia, detail how thousands of workers, and in several cases, their families, were being compelled to walk large distances to reach their respective homes (the usual means of transport also having been suspended by the lockdown).

When the Petitions were first listed on 30th March 2020, the Union was directed to submit a response. On 31st March 2020 (less than 24 hours later), the Union of India submitted a “Status Report” that has been referred to extensively by the Supreme Court, while giving its directions in the Petitions. While the Status Report has separately been made available, as recorded by the Supreme Court’s order, it purportedly deals with the following issues:

  • Various steps taken to prevent the spread of COVID 19, including early steps by the Union of India;
  • Institutional response to the management of the spread of the virus;
  • The constitution of an expert group to provide guidance under the aegis of NITI Aayog, and comprising “experts from cross sections in the medical field and public health fraternity”;
  • Various other measures of the Union Government in dealing with the needs of the lower strata of society;
  • Schemes formulated to ensure that persons in need are taken care of;
  • Status of shelters set up for migrant workers.

Paragraph 52 of the Status Report, in particular, sets out the “Steps taken by the Central Government”, which covers advisories issued, suspension of transport, the lockdown itself, and the exceptions thereto.

  • In order to provide food and shelter to the migrant workers and other homeless persons, the Central Government permitted State Governments to utilise the Disaster Response Fund on 28th March 2020.
  • Several directions were issued to the States to deal with the scenario of the migrant workers attempting to return to their homes (all the so-called measures appear to be suggestions and / or options for the State Governments to consider and implement in their own way).
  • An advisory followed on 29th March 2020 to ensure that the basic objective of “national social distancing” was not defeated, and therefore no more migration be permitted.
  • Accordingly, state borders were sealed and states were to prohibit movement of people. Transportation of all goods was permitted to continue.
  • Since the movement of workers continued to be noticed across the country, further directions were passed, including to keep migrants in the shelters for a period of 14 days and for payment of wages without deduction (admittedly therefore, despite the steps taken and the directions to the State Governments, the issue concerning the day-to-day living of the migrant workers continued to be precarious).

Further, widespread reports which had emerged prior to the Order (with video and / or photo evidence), covered in detail how police forces were beating people – including migrants – with batons, for breaking quarantine rules, and spraying persons on the road with disinfectant. This even prompted the UN Office of the High Commissioner of Human Rights to call upon the Indian police forces to show restraint and abide by international standards on the use of force and humane treatment in their efforts to respond to this pandemic. Reports abounded of the difficulties faced by workers in reaching their hometowns, including being stopped and questioned to the point of harassment, being made to pay for what were supposed to be free transport services, and often being inhumanly treated.

Two days after the Supreme Court’s order, news continued to be published on the continuing plight and helplessness of migrant workers being turned away by states at their borders and being chased away before finally being provided shelter, as has purportedly been envisaged by the Union Government. The Wire has also reported that the very evening the Supreme Court’s order was delivered, a group of labourers, having walked from Bengaluru to Vapi, were forced into an ill-ventilated truck and taken outside Gujarat into Maharashtra.

On the legal front, the following petitions / applications are also pending before the Court:

  • The SC on 3rd April 2020 issued notice on an allied PIL seeking directions to the Governments to ensure payment of wages to migrant workers during the lockdown period, and directed that the Union file a response prior to 7th April, the next date for the listing of the Petitions.
  • An application seeking conversion of appropriate premises for isolation and quarantine facilities, in view of the fact that the shelters set up by the governments for migrant workers didn’t have adequate sanitation facilities, was disposed of by the Court observing that while several ideas were being formulated, the Court and the Government could not hear all of them. It seems that the Court nonetheless directed that suggestions be forwarded to the SG’s office. The order on the application is awaited.
  • It is also reported that the SC took up today a letter-PIL filed by Member of Parliament Mahua Moitra, in respect of similar issues, the outcome of which hearing was not known at the time of this article.

In light of all the above circumstances and background, I submit that the absolution granted by the Apex Court by according at the very first instance its satisfaction with respect to the purported measures of the Central Government, was at the very minimum, premature and ill-considered. While this blog has considered the responsibilities of legislators, the governments, and public health professionals in the time of the coronavirus, a heavy burden also lies on the SC to provide a dispassionate forum for redressal of urgent matters, involving constitutionally guaranteed rights, that arise in this difficult time. The institution’s role is based on the fundamental tenet that it must serve as a check on State power.

It is understandable that the pandemic, in light of our population, and coupled with the boom of internet access and thus widespread dissemination of information has created a largely unprecedented situation; the situation still did not in any manner warrant either the blanket approval accorded by the Court to the Central Government, nor the sweeping directions based on vague and unsubstantiated assertions. Our Courts thankfully continue to keep their doors open for matters which cannot wait for the end of the lockdown, but that would also mean that the judiciary’s constitutional role to hold the executive and legislature accountable continues despite the unprecedented situation. It is important to note that:

  • This role would in no manner require the SC to interfere with the policy decisions that are being taken by the Central / State Governments and which are captured in the Status Report. The Central and the several State Governments naturally enjoy constitutional autonomy in the field of policy making and implementation to tackle the spread of COVID-19 and containment thereof.
  • However, the constitutional Courts are required to scrutinise and ensure that any such measures, and the reasonable implementation thereof, do not encroach upon fundamental rights. The legal standards under relevant constitutional articles, in this regard, are long-standing and well-settled.
  • In view of the continuing violations of the rights of the migrant workers – for example, the lack of basic food and shelter, the inordinate police action being taken to manage the crowds, the blatant violation of the right to dignity by spraying the workers with disinfectant en masse – the Court is expected to at the very least hold the Central Government (and, where applicable, state governments) continuingly accountable for the lawful implementation of the various measures purportedly being taken as per the Status Report.
  • While responses may be awaited as to whether the Status Report measures have been carried out, the Court could have at the outset recorded the admitted position that steps were still to be taken to guarantee basic amenities to all the stranded persons (paragraph 45 & 50 r/w 52 (XXIII)), an update on the lawful implementation thereof could be furnished on the next date of hearing (7th April 2020), and that the Government has a continuing responsibility to ensure no further rights violations take place.

After briefly setting out the purported contents of the said Status Report, the Order however changes tack and shifts seemingly the entire onus of causing the plight of the migrant workers solely on the dissemination of “fake news”. The Centre in the Status Report sought a specific direction (paragraph 56) “that no electronic / print media / web portal or social media shall print / publish or telecast anything without first ascertaining the true factual mechanism provided by the Central Government” as set out in the Status Report viz. the PIB Bulletin.

The only mentions of the purported issue being faced by the Government to justify the above direction are contained in mere assertions in the Status Report which are reproduced to their relevant extent below:

  1. Paragraph 20 – “deliberate or inadvertent fake news and/or material capable of causing serious panic is in the mind of the population is found to be the single most unmanageable hindrance in the management of the challenge.”
  2. Paragraph 41 – due to some fake and/or misleading news/social media messages, a panic was created.

However, the cause for the exodus of migrant workers actually appears (in large part, admittedly) to be as follows:

  • the Prime Minister announced a national lockdown on 24th March 2020 w.e.f. the next day, following which migrant workers were deprived of work and consequently livelihood for their basic sustenance.
  • The speech did not contain any information as to the availability of essential goods to these workers who had next to zero savings and lived a day-to-day existence.
  • Further, one by one, States began sealing borders, in some cases asking incoming persons to be tested prior to being allowed entry.
  • Several interviews have been given by such workers stating that they were choosing to return to their hometowns because the Prime Minister’s address to the nation was unable to dispel fears pertaining even to the 21-day lock down, let alone the apparent panic of a 3-month lockdown.

The SC however, on the basis of the threadbare statements in the Status Report, and without any substantiation thereof in the oral arguments, went as far as to record and direct as follows:

  • The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months.” Note, however, that no mention of the same is contained in the Status Report, and the assertion is entirely unsubstantiated.
  • A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours”. The daily bulletin can be accessed state-wise here. It is trite to mention that access to that bulletin is perhaps at its most limited when it comes to migrant workers (in respect of whom the Order has been passed), and therefore does nothing to achieve the purported objective of free and fair dissemination of information to the said category of persons.
  • We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.” The final direction, while apparently permitting continued independent reporting, amounts to compelled speech, as it directs the media to, at the very least, publish the government-sanctioned version of measures being taken to contain the spread of COVID-19.
  • The Court also mentioned that “… expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.” This is arguably a disguised form of censorship of media content, as the standard of verification approved by the Court is the daily bulletin being published by the Government.

Thus, not only did the Court completely absolve the Central Government of any responsibility towards the alarming migration of workers to their hometowns, it also went as far as shifting the onus / blame and therefore the consequence completely onto the media. This direction contradicts longstanding precedent on the relevant issues of the right to freedom of speech and expression, as under:

  • The Court has, in the seminal judgment of Bijoe Emmanuel v. State of Kerala recognised the fundamental right to remain silent as part of Article (19)(1)(a). The 31st March Order however, transgresses upon this right by compelling the media to publish and reproduce what is the government’s speech and expression.
  • In Union of India v. Motion Picture Assn., the SC laid down that compelled speech is equally an infringement of the right to free speech, except to the extent permitted under Article 19(2). It was clarified that compelled speech would be within the ambit of the constitutional provisions if it furthers informed decision-making which is the essence of the right to free speech and expression. If, however, such direction compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression. While the Court ultimately upheld the compelled speech in that case, presently, the direction to the media to publish a ‘government-verified’ version of the news amounts to a serious assault on the freedom of expression of the neutral and independent media, and as set out above, fails to achieve the objective of furthering informed decision-making, or even widespread dissemination of information.

A large part of public trust in the judiciary stems from the rule of precedent which requires courts to rely on precedent and settled legal principles to decide cases. In this case, there was no stated case for the Court to depart from precedent and in fact lay down what may amount to a dangerous precedent for the future.

This blog, after analysing the recent decision-making trends of the Apex Court, has observed that in matters where the highest political stakes are pitted against fundamental constitutional issues, the Court is only as strong as the Government is willing to enforce the Court’s directives. In that tussle, recent judgments seem to reveal that the Court often appears to hesitate in ruling against the government on politically sensitive matters, in the aid of continuing to maintain a working relationship with the government. The trend seems to have gone a step further in the Order where, based on unsubstantiated claims in a time of crisis, the Court  has compelled the Fourth Estate to carry government-approved missives about the crisis.

Revisiting the Aadhaar Judgment

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


It has been more than a year since the Supreme Court’s judgment in  K.S. Puttaswamy v Union of India (II) [“the Aadhaar Judgment”], which was delivered on September 26, 2019. The intervening period has seen some legislative developments – for example, resurrecting the use of the Aadhaar database by private parties, which had been struck down by the Court. It has seen the promise of fresh laws (such as the Data Protection Act, which – it is rumoured – will be placed before Parliament in the winter session). It has also seen the proposed extension of the Aadhaar programme (for example, mandatory linking of voter IDs), as well as other legislative proposals involving the collection and use of personal data (facial recognition systems, DNA profiling, and so on).

It is therefore important to revisit the Aadhaar Judgment, and determine what, precisely, the Supreme Court held in that case. While the judgment is widely known for having upheld the constitutionality of the Aadhaar programme while also limiting its scope in certain important respects, it was also the first time the Supreme Court dealt with the intersection of contemporary data collection, storage, and use practices, and fundamental rights. The principles that emerge out of that discussion, therefore, have a significance that goes beyond the specific holding in that case.

Overview 

To understand clearly what is at issue, let us begin with certain conceptual distinctions. The Aadhaar Judgment involved three levels of analyses: (i) an analysis of facts involving the Aadhaar programme; (ii) an analysis of applicable legal and conceptual standards; (iii) and an application of those standards to the facts (in order to determine whether and to what extent the Aadhaar programme passed constitutional muster). On this blog, in the aftermath of the judgment, a group of us analysed (i) and (iii) in some detail, and criticised the Court on both counts. The Court’s decision to uphold the Aadhaar programme, we argued, was premised on a wrong understanding of facts, and a wrong application of legal standards to those wrongly-determined facts. In this post, I intend to bracket those two questions, and complete the analysis be examining issue (ii) in some detail: i.e., the legal standards themselves.

I will argue that if we read the Aadhaar Judgment along with the nine-judge bench decision that upheld privacy as a fundamental right in K.S. Puttaswamy v Union of India (I) [“the Privacy Judgment”], certain important principles emerge (and on these principles, both the majority and Chandrachud J.’s dissenting opinion were in broad agreement). In summary, the Supreme Court held that (i) the collection, storage, and use of data in a manner that enables profiling is unconstitutional, (ii) data minimization, purpose limitation, and limited data retention are integral to any legislation or executive act involving data collection; (iii) use by private parties of the Aadhaar database is forbidden; and (iv) in testing the constitutionality of any specific measure that infringes the right to privacy/involves data collection and processing, the proportionality standard is applicable. This standard places an evidentiary burden upon the government to justify both the rationality of the measure, as well as its necessity (i.e., no alternative measures that infringe rights to a lesser degree are available).

The Role of Facts and Law

To understand the holding of the Supreme Court in the Aadhaar Judgment, it is important to begin with the main grounds of challenge. As indicated above, the Aadhaar challenge involved a set of legal claims, based upon a set of factual assertions. Relevant for our purposes here were the contentions that (i) Aadhaar enabled a surveillance State by allowing the government to track individual transactions through the authentication mechanism, (ii) Aadhaar enabled profiling by allowing the merging of data silos, (iii) the data collection was excessive and breached the right to privacy, (iv) Section 57, which private parties’ access to the database, breached the principle of purpose limitation, and also enabled commercial surveillance.

It is of vital importance to note that the Aadhaar Judgment rejected none of the petitioners’ legal claims; rather, to the extent that the Court found against the Petitioners, it did so because it disagreed with their factual arguments, while agreeing with the legal claims (and it was those findings that we criticised last year on this blog). In other words (to take one example), the Court found that the Aadhaar programme did not allow for the merging of data silos; however, it becomes clear from a reading of the judgment that had it been the case that the merging of data silos was allowed, the Court’s conclusion would also have been different.

Surveillance

So: on the first contention (surveillance), the Court found on facts that, among other factors, the legal prohibitions upon the sharing and disclosure of core biometric data, sharing of e-KYC data only with user consent, no transmission of identity information back to the Requesting Entity, and the retention of authentication logs only for a short period, precluded the possibility of State surveillance. In addition, the Court found on facts that the merging of data silos was prohibited, the data collection at the time of enrollment was minimal (fingerprints and iris), and the Authority was purpose blind. Consequently, the Court specifically held that we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR.”

Data Protection and Privacy: Principles of Data Minimisation, Purpose Limitation, and Safeguards

On the issue of data protection and privacy, the Court specifically observed that “the crucial requirements, which are indicative of the principles for data protection that India adheres to, inter alia include… information collected shall be used for the purpose for which it has been collected [“purpose limitation”]… Body corporate or any person on its behalf shall, prior to the collection of information, including sensitive personal data or information, provide an option to the provider of the information to not to provide the data or information sought to be collected … Disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information, who has provided such information under lawful contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation.” (paragraph 166)

In this context, the Court’s discussion of case law from the European Union was particularly illuminating. The Court discussed judgments such as Marper, where the storage of DNA profiles had been struck down because of their “blanket and indiscriminate nature” (paragraph 178) (in particular, failing to distinguish between suspects and convicts); Digital Ireland, where an EU Directive that enabled profiling without any temporal or spatial limits; Tele2, where metadata collection was struck down because it violated the data protection principles referred to above (again, it was indiscriminate in nature, and affected individuals without any probable cause of suspicion). The Court concluded by noting that “it is evident from various case laws cited above, that data collection, usage and storage (including biometric data) in Europe requires adherence to the principles of consent, purpose and storage limitation, data differentiation, data exception, data minimization, substantive and procedural fairness and safeguards, transparency, data protection and security. Only by such strict observance of the above principles can the State successfully discharge the burden of proportionality while affecting the privacy rights of its citizens.” (paragraph 187) It will be noted that these are the exact principles that the Court held operated in India as well; European case-law, thus, is heavily persuasive authority on this issue.

The Court then went on to specifically analyse the provisions of the Aadhaar Act on the touchstone of these principles. It held that “data minimization” was satisfied because the information collected was minimal, and the nature of the transaction or the individual’s location was not revealed during authentication; at the same time, the Court invalidated the storage of any form of metadata other than “process metadata”, in order to meet the requirements of data minimization; it also held that “purpose limitation” was satisfied because certain definitional provisions had been read down – and – critically – Section 57, which allowed private parties to use the database under cover of any “law or contract” had been struck down (as would be done later in the judgment); on data retention, the Court restricted the time period for which the data could be stored to six months.

On both counts, the petitioners made a specific argument that there were insufficient safeguards under the framework of the Act with respect to data sharing, as – in particular – the police could gain access to the database. The Court answered this by holding that these concerns were assuaged by (a) reducing the period of data retention to six months, (b) requiring that if through a judicial order any individual’s information was to be shared, that person would have to be given a hearing (under S. 33 of the Act); in particular, and crucially, the Court noted that “there is a reasonable presumption that the said court shall take into consideration relevant law including Article 20(3) of the Constitution as well as privacy rights or other rights of that person before passing such an order.” (c) sharing of information that did not go through a judicial process (such as in cases of national security under S. 33(2)) was invalid, and a judicial member would have to be added to the decision-making authority; and that Section 57 had been struck down (paragraph 220).

Data Silos

Thirdly, on the aspect of the integration of data silos, the Aadhaar Judgment noted that in the Privacy Judgment, it had clearly been held that isolated information silos, when aggregated, could enable profiling (paragraph 232); as indicated above, the Court found that as a matter of law silos remained integrated, and were not permitted to be aggregated.

As an overall point, the Court held additionally – while addressing the privacy claim – that as part of the balancing process, the expectation of privacy in biometrics and irises was relatively low (as opposed to, for example, medical data); thus, overall, data collection remained “minimal”, and that this helped tip the balance of rights in favour of Aadhaar. (paragraphs 295 – 297, 308)

Proportionality

Fourthly, moving on to specific challenges beyond the Aadhaar Act, the Court upheld the mandatory linking of Aadhaar with PAN, but struck down linking with bank accounts and SIM cards. In each case, the Court’s rationale was founded on the question of whether the government had managed to discharge its evidentiary burden under the proportionality standard (i.e., demonstrating a legitimate State aim, a rational connection between the measure and the aim, that the measure was least restrictive with respect to fundamental rights as compared to all other alternatives, and finally, that on balance, it was proportionate). On the issue of PAN Cards, it held that the government had demonstrated with “empirical data” that as Aadhaar was a unique identifier, it could deal with the problem of bogus or duplicate PAN cards (paragraph 421, 423); on the other hand, as far as bank accounts were concerned, the Court specifically held that “that it does not meet the test of proportionality and is also violative of right to privacy of a person which extends to banking details.” (paragraph 429); importantly: “under the garb of prevention of money laundering or black money, there cannot be such a sweeping provision which targets every resident of the country as a suspicious person. Presumption of criminality is treated as disproportionate and arbitrary.”

The Court went on to hold that the State had not even demonstrated how mandatory linking would solve the problem of black money, and why alternative methods of KYC were insufficient; mere “ritual incantation” of black money would not suffice under the proportionality standard (paragraph 434), in a world in which maintaining a bank account had become “almost a necessity” (paragraph 435); rather, “there should have been a proper study about the methods adopted by persons who indulge in money laundering, kinds of bank accounts which such persons maintain and target those bank accounts for the purpose of Aadhaar. It has not been done.”

And the Court returned a similar finding on the issue of SIM cards, noting that “for the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also impinges upon the voluntary nature of the Aadhaar scheme. We find it to be disproportionate and unreasonable state compulsion.” (paragraph 442)

The Legal Standards

In summary, therefore, the Aadhaar judgment proceeded in this way: the Supreme Court accepted the Petitioners’ constitutional tests for adjudicating the validity of the Aadhaar programme. It found that parts of the Aadhaar programme were compliant with these tests, and parts of it were not. At some places, the Court found that compliance was possible if certain provisions were read down, or interpreted narrowly. At other places, it found that it was not possible – and those provisions were struck down. When we read this holistically, and in view of the Privacy Judgment, the following principles (as indicated above) emerge:

  • Profiling is unconstitutional. Consequently, aggregation of data silos that enables profiling is also unconstitutional. The “360 degree view” of citizens that certain states and police departments have proclaimed as a matter of pride, is not permitted under law.
    • As a corollary, collection and storage of metadata that enables profiling is also unconstitutional.
  • Purpose limitation is mandatory for data collection. In other words, if law enables data collection for “x” purpose, it cannot then be stored/used for any purpose other than X.
    • Two important corollaries follow from (a) and (b). First, the Aadhaar database cannot be accessed by other bodies (for example, the police). Not only would this breach both (a) and (b), it would also – in this specific case – breach the right against self-incrimination (it is for this precise reason that the Court insisted that sharing of information could only be done through a specific and individual judicial order, or an order involving a judicial member).
    • Secondly, laws for data collection cannot be framed in generic or open-ended terms. They must categorically specify the purpose for which data is collected (and will be stored and used), and their constitutionality will be judged on that count.
  • Private parties are not authorised to access the Aadhaar database. This becomes important in light of the fact that after the judgment, an ordinance – and then a law – was passed just to allow this. This law is unconstitutional. It may be argued that there are parts of the judgment that suggest that the only part struck down in Section 57 was the part that allowed access even through a “contract.” This argument cannot succeed. The Aadhaar Judgment is clear on more than one occasion that the part involving body corporates is the one that is struck down – law or contract notwithstanding. There are three further reasons why this interpretation is correct: first, the fact that clearly the database should not be made accessible purely through a contract was not the only reason why the Court found Section 57 unconstitutional. Section 57 was also struck down because it violated purpose limitation – and the distinction between law and contract is agnostic in that regard; secondly, the Court upheld the Aadhaar Act as a money bill on the basis (inter alia) that it had already struck down Section 57 (and that the rest of the Act was substantially a money bill). Obviously, this could not have been the case if only a part of Section 57 had been struck down – the procedural flaw would have remained in that case; and thirdly, the Court struck down Section 57 because it enabled commercial surveillance – another point that is agnostic about the difference between law and contract.
  • Any law requiring data collection must satisfy the principle of proportionality. This principle requires the government to demonstrate the necessity of the collection, through concrete evidence. (for example, if the government wants to mandatorily link Aadhaar with Voter IDs, it must demonstrate the factual necessity for it, and also that alternative methods of “de-duplication” are insufficient). Crucially, data collection cannot be blanket – that is, if the goal is to identify a specific instance of wrong-doing or prevent crime (in policing), the State cannot achieve that by blanket and indiscriminate data collection, that fails to distinguish between those against whom there is probable cause of suspicion, and against whom there is not. In other words, data collection statutes must be specific and targeted.
    • The period of data retention also speaks to the proportionality of the measure. Retaining data for an excessive period renders the measure disproportionate.
  • The greater the reasonable expectation of privacy in the data in question, the higher the burden of justification upon the State. In the Aadhaar Judgment, the Court held that the expectation of privacy in biometric details and iris scans was low. However, for any other species of data, (for example, DNA), the analysis will have to be undertaken afresh.

Conclusions

As we pointed out at the time of the judgment, there are some serious doubts over the Court’s analysis of facts, and application of law to the facts, throughout the course of the verdict. Those doubts remain. However, while issues of that kind are specific to the judgment – and to the constitutionality of Aadhaar – the interface between technology and fundamental rights obviously is not. It is here that the legal standards evolved by the Court in the Aadhaar Judgment are important, because is they – and not the concrete, fact-specific holding on the constitutionality of Aadhaar – that will provide the constitutional framework within which future disputes will be litigated. In this post, I have attempted to show that on that question, the Supreme Court articulated – and accepted – a rigorous and privacy-protective set of legal standards. A correct application of those standards would invalidate – or at least, throw into serious doubt – the government’s plans for open-ended data collection (under the guise of anodyne terms such as “data is the new oil), facial recognition tenders, and indiscriminate DNA profiling; most importantly, these standards provide a crucial yardstick from which to judge the adequacy of the Data Protection Act that is eventually passed by Parliament. Any such legislation – it hardly needs reminding – must comply with these standards, as they are grounded within the Constitution. In other words, the soon-to-come statutory landscape of data protection in India must adhere to the constitutional framework that has been traced out above.

Notes from a Foreign Field: “The Time has Come” – the Botswana High Court and the decriminalisation of homosexuality

Sodomy laws … deserve archival mummification, or better still, a museum peg, shelf or cabinet for archival display.” – Letsweletse Motshidiemang v Attorney General, High Court of Botswana, para 209

Two weeks ago, the High Court of Kenya handed down a disappointing judgment upholding the constitutional validity of the Kenyan sodomy law. Yesterday, however, confronted with almost identical legal provisions, the High Court of Botswana went the other way, decriminalising same-sex relations on the touchstone of the constitutional rights to privacy, liberty, equality, and dignity. The judgment in Letsweletse Motshidiemang v Attorney General makes for fascinating reading. This is because of its austere – but clear – reasoning, but also because it marks the fall of yet another progeny of what began life as Section 377 of the Indian Penal Code, and then proliferated through the British colonies: the prohibition of “carnal intercourse/knowledge against the order of nature.”

As I mentioned in my analysis of the Kenyan High Court’s judgment, the constitutional arguments against the sodomy law are familiar ones, whetted by years of litigation in constitutional courts across the world. What is striking, however, is the diametrically opposite view that the Botswana High Court took from its Kenyan counterpart, in responding to virtually identical arguments, within the space of two weeks. What is also striking is the similarities between the overall approach adopted by the Botswana High Court on the one hand, and the Delhi High Court in Naz Foundation and the Indian Supreme Court in Johar, on the other. Both are issues that I shall discuss.

As a preliminary point, the judgment stands out for its clear endorsement of the value of pluralism, which made its first appearance in the second paragraph. Pluralism – and the necessity of respecting diverse ways of being and life choices, which the Court defined as inclusiveness – form, in a sense, the intellectual scaffolding that allowed it to build and develop its substantive rights-based arguments. Tellingly, “pluralism” and “inclusiveness” were also two words that were at the heart of the Delhi High Court’s 2009 judgment in Naz Foundation; and perhaps equally tellingly, the Kenyan High Court’s judgment did not have a similar, framing value that would help to contextualise the constitutional challenge. Within that framework, let us now examine the judgment.

Vagueness

After a brief account of the Christian – and later, colonial – origins of anti-sodomy laws, the Court considered the first substantive challenge – that of vagueness. Like the Kenyan High Court – and unlike the situation in India, where judicial interpretation of Section 377 had been inconsistent – the Court found that there existed binding court judgments explaining what “carnal knowledge … against the order of nature” meant: in Botswana, it had been defined as anal sex. For this reason, the impugned sections – 164(a), (c) and 165 – of the Penal Code were not vague; and the question then became, did the blanket criminalisation of anal sex violate the Constitution of Botswana? (paragraph 96)

Acts and Identities: Liberty, Dignity, Equality

This, in turn, allowed the State to set up that old and familiar argument, which makes an appearance in every litigation around this family of legal provisions: that ultimately, the sodomy law only criminalised a certain kind of “sexual act.” It did not criminalise homosexuality – or homosexuals – per se, and therefore, none of the constitutional values of equality, dignity, or liberty, were relevant. As the Court recorded the Attorney General’s submissions:

In answer thereto, the Attorney General has submitted that the applicant is a “cry baby” and that he is free to engage in sexual activity as long as it is not sexual intercourse per anus. It is the respondent’s position that Sections 164 (a) and (c) are not discriminatory as they are of equal application to all sexual preferences, and that Section 15 of the Constitution provides limitations on the enjoyment of fundamental rights. (paragraphs 136 – 7)

Recall that this classification of sodomy laws as targeting only “acts” was accepted both by the Indian Supreme Court in Koushal and by the Kenyan High Court, and formed an important part of these Courts’ reasoning in upholding the laws. It was, however, rejected by the Indian Supreme Court in Johar, and the High Court of Botswana similarly gave it short shrift. At a very basic level, the Court noted that while the section may have been neutrally worded, it nonetheless targeted a form of sexual expression that, in effect, targeted homosexuals, because they could not – by definition – engage in penile/vaginal sex. (paragraph 144) This being the case, the section clearly denied to homosexuals the right to sexual autonomy and the right to a choice of a sexual partner, choices that fell squarely within the domain of individual liberty; it also denied them the right to sexual expression, which was a violation of individual dignity. (paragraph 151) As the High Court colourfully noted, “the impugned provisions force him [the individual] to engage in private sexual expression not according to his orientation; but according to statutory dictates.” (paragraph 144)

The Court then made a deeper argument about equality and discrimination. Section 15(3) of the Constitution of Botswana defines discrimination as “affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour, creed or sex.” Like Article 15(1) of the Indian Constitution, this is a “closed list.” Unlike Canada or South Africa, It does not use words like “including” or “among others” before “race, tribe…” etc., and therefore, textually, precludes a Court from adding in entirely new grounds into the Section.

However, working within these constraints, and citing the previous judgment of Attorney-General v Dow, the High Court noted that:

I do not think that the framers of the Constitution intended to declare in 1966, that all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment, have been identified and mentioned in the definition in section 15(3). I do not think that they intended to declare that the categories mentioned in that definition were forever closed. In the nature of things, as farsighted people trying to look into the future, they would have contemplated that, with the passage of time, not only groups or classes which had caused concern at the time of writing the Constitution but other groups or classes needing protection would arise. (paragraph 158, citing Dow)

As I have argued elsewhere, this is exactly the approach that should be adopted towards an anti-discrimination provision. Assessing discrimination is always a contextual enquiry, and the groups that are identified and persecuted by virtue of their group identity can – and do – change from time to time. For this reason, ideally, an anti-discrimination provision should lay down the principle, set out the groups that are salient at the time of drafting, and remain open-ended (as in Canada or South Africa). However, where it isn’t, a Court should at least be able to interpret the existing grounds flexibly, even if it can’t add new ones. And this is precisely what the High Court did, following comparative jurisprudence to hold (like the Delhi High Court in Naz), that sex included “sexual orientation”, as “sex and sexual orientation, are associable signifiers of a similar scope and content.” (paragraph 161) Interestingly, the Court buttressed this finding by noting that the Employment Act already prohibited discrimination on grounds of sexual orientation in the workplace; like the case of the 2017 Mental Healthcare Act in India, a poignant example of the first meaningful legal change coming through a statute.

Armed with this interpretation of Section 15(3), the Court returned to the question of acts and identities. Relying upon both comparative law and evidence (including evidence provided by the Applicant, a gay man), to hold that sodomy laws – whatever their wording – had the effect of stigmatising the LGBTQ population, “render[ing] the[m] … a criminal, or an “unapprehended felon”, always on tenterhooks, waiting to be arrested.” (paragraph 169) This, in turn, meant that the sections were discriminatory in effect (an argument similar to that made by Chandrachud J. in Johar) – a conclusion that was aided by the fact that the Constitution of Botswana explicitly prohibited indirect discrimination. Here again, the High Court’s approach was in stark contrast to that of its Kenyan counterpart: while the Kenyan High Court – like Koushal in India – found that there was no “evidence” for any of this, and that simply “pleading” rights violations in affidavits was insufficient, the High Court of Botswana took seriously the account of discrimination recounted by the Applicant, as well as relying upon scholarly studies for the stigmatic effect of sodomy provisions.

Privacy

The High Court also engaged in an interesting discussion of the right to privacy. Like the American Constitution, the Constitution of Botswana – through Sections 3(c) and 9 – frames “privacy” in its classical sense, as pertaining to spaces – the home, property, freedom from an unreasonable search, and so on. Specifically acknowledging this (para 116), the Court nonetheless refused to limit privacy to the merely spatial, instead – in line with comparative jurisprudence – extending it to include decisional autonomy and the privacy of intimate choice, free from State control. (para 122)

The State’s Arguments

Interestingly, this was not the first time that the constitutionality of sodomy laws was being litigated. In 2003, in a case called Kanane, the Botswana Court of Appeal had held that it “was not yet time” to decriminalise same-sex relations. Much like Johar in India, therefore, and Lawrence in the United States, the Court was faced with a recent decision that had gone the other way. The High Court of Botswana, however, was quick to get around this, noting that no expert evidence had been presented in Kanane, and that the Court had not even dealt with the arguments on privacy, dignity, and indirect discrimination. (paragraph 171)

The State then argued that the purpose of the law was to protect and advance public morality and public interest. – another familiar argument. Applying the proportionality standard, the Court responded by noting that these were merely “bare assertions and or speculations that sexual anal penetration is contrary to public morality or public interest.” (paragraph 180). However, none of this had been demonstrated, it had not been shown that criminalisation was the least restrictive method of achieving the State’s goal (even of advancing public morality), and evidence of the harm caused to the LGBTQ community had not been rebutted. (paragraph 181). But in any event, the Court noted, public morality was relevant in a constitutional claim, but not dispositive. (paragraph 185) In this case, for the reasons advanced above, it fell well short of the proportionality standard; the same was true for the public interest justification, as criminalisation:

… disproportionally impacts on the lives and dignity of LGBT persons. It perpetuates stigma and shame against homosexuals and renders them recluse and outcasts. There is no victim within consensual same sex intercourse inter se adults. (paragraph 189).

The only other possible justification, the Court noted, was the Victorian, “Judeo-Christian” idea of the purpose of sex being for procreation. That premise, evidently, had long ceased being valid. (paragraph 208). The Court therefore struck down the provisions prohibiting carnal knowledge against the order of nature, and read down the provision criminalising “gross indecency” (Section 167) by severing and excluding acts done in private.

Points of Critique

The judgment of the High Court of Botswana is a powerful and eloquent defence of the rights of privacy, dignity, freedom, and equality; its clear and unequivocal holding, which decriminalises same-sex relations, is to be welcomed and applauded. However, while most of the judgment is a study in excellent rights-reasoning by a constitutional court, there are three discordant notes, which also need to be highlighted.

First, from time to time, the High Court got sucked into the question of whether sexual orientation was “innate” (paragraph 142); towards the end of its judgment, it held that sexual orientation is an “innate attribute that [people] have no control over.” (paragraph 190) As I pointed out in my analysis of the Kenyan High Court judgment, however, the “born this way” argument is controversial even within LGBTQ circles, but more importantly, it is a red herring. The question of whether sexual orientation is innate or not is irrelevant to issues of group discrimination (where, as the South African Constitutional Court pointed out, a homosexual identity is first “constructed”, and then subject to persecution), and to questions of decisional autonomy and individual freedom in making intimate choices.

Secondly, as part of its substantive reasoning, the High Court drops the odd claim that homosexuals can “only” have anal sex (and that’s why Ss. 164 and 165 take away sexual freedom). Now, it’s unclear where the High Court gets this from, but in any event, this also misses the point: the struggle around getting sodomy laws removed is not – and has never been – about legalising a particular sexual act, but about bringing down a range of discriminatory practices that deny to the LGBTQ community equal moral membership in society.

Thirdly – and again, this comes at the end of its judgment – the High Court’s stress on the “private” sits ill at ease with its excellent analysis of freedom, equality, and discrimination. In Johar, the Indian Supreme Court was careful not to go down the Delhi High Court’s path and qualify decriminalisation by adding the words “in private.” Like Johar, the Botswana High Court also does not add any such qualification while striking down Ss. 164 and 165, but it does so in its analysis of S. 167 (gross indecency), where it strikes out “private”, and leaves the criminalisation of “gross public indecency” intact. But what is “public indecency” if not the same kind of socially-perceived “deviant” behaviour that the Court is otherwise so concerned to protect under the Constitution? Without a clearer definition, that is the only use it will ever be put to.

It is important to note, however, that none of these three points are central to the core of the decision; the decision would remain even if we jettisoned them. The High Court’s arguments on freedom, equality, and dignity, and its ringing endorsement of diversity, plurality and the protection of the marginalised, does not require it to commit to the “born this way” theory of sexual orientation; it does not require any holding on the mechanics of anal sex; and it does not need a re-entrenchment of the public/private divide. It is to be hoped, therefore, that in future, it is the rights-expanding, liberty-protecting aspects of the judgment that will stand the test of time, while these odd discordant notes will, ultimately, fade away.

Conclusion

Coming two weeks after the intense disappointment of the Kenyan High Court’s judgment, Letsweletse Motshidiemang marks a welcome reversion to form: across the world, the fact that sodomy laws have no place in liberal democracies is increasingly becoming part of judicial common sense. Arguments from “public morality” and “deference”, which once held powerful sway over the minds of judges, are losing their purchase. The Botswana High Court’s clear, powerful, and unambiguous judgment gives us hope that what happened two weeks ago was a brief aberration, which will be swiftly set right by the Kenyan appellate courts; in the meantime, there is another judgment to celebrate.

Guest Post: Delhi HC Decriminalises Begging – An Outlier or the Start of Nationwide Reform?

(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog.)


Within the first decade of India becoming a constitutional republic, the erstwhile State of Bombay passed the Bombay Prevention of Begging Act, 1959 [“anti-begging law”]. This was extended to the national capital in 1960 and has been operational since 1961. Nineteen other states and another Union Territory followed suit, either with their own versions of the law or by extending the Bombay Act as well. Yesterday, a Division Bench of the Delhi High Court decided a 2009 writ petition challenging the constitutionality of several parts of the anti-begging law [Harsh Mander & Anr. v. UOI & Ors., W.P. 10498/2009 decided on August 8, 2018. Hereafter, “Harsh Mander”]. Central to the petition was a challenge to several provisions of the law which criminalised begging. On her last day in office as Acting Chief Justice of the Delhi High Court, Justice Gita Mittal delivered a judgment holding that these 25 provisions criminalising begging were indeed, unconstitutional.

The Crime of Begging and its Punishment

Before going forward, let’s take note of what was being criminalised. Begging. The statute defined it as “having no means of subsistence and wandering about or remaining in any public place in such condition or manner as it makes likely that the person doing so exists by soliciting or receiving alms.” It also defined it as “soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, performance or offering any article for sale.” [Section 2] What happened to those found begging? They were to be taken off the streets and the law required they be sent to detention centres. Section 6 of the Bombay Act declared that persons found begging for the first time be detained for at least one year in a Certified Institution, which could extend to three years. Second-time offenders faced a mandatory detention period of ten years, with a possible prison sentence.

The state saw the main problem being addressed through the law as one of organised crime – rackets being run by rich people who forced people to beg for a living. The anti-begging laws were driven by a deterrence logic to put an end to these rackets. But, a look at the definition makes it apparent that it covered a very wide category of persons. It did not even need any specific act to invite criminality; dire poverty that was visible and witnessed in public places was enough. Thus, people were made criminals not because of what they did, but for showing the rest of us who they were. No matter: this is where the rehabilitative logic of the anti-begging law came in. Those who were deprived and forced to beg would be helped by the Certified Institutions. These Institutions were not prisons, but places offering vocational training to help make persons capable of providing for themselves without begging.

As with most laws, the main problems with the anti-begging law came in enforcement. The state did not attempt any systematic approach at solving the problem. Instead, the law became a convenient tool at the hands of law enforcement to clean up city spaces of people who “looked” poor, as had recently happened in Delhi before the Commonwealth Games in 2010. The people most often caught and brought before courts were rarely part of criminal gangs, but people forced to beg out of extreme poverty and lack of employment opportunities. Courts justifiably refused to institutionalise them by exercising pardon powers conferred by the statute [Section 5]. The Certified Institutions themselves had come to be mired in controversy over time. Social activists and researchers complained that detention centres were no better than prisons and had no functional vocational training facilities. The state disagreed, and instead complained that courts did not send convicted beggars to Certified Institutions to facilitate rehabilitation. Ultimately, in 50 years of being on the statute books in Delhi, neither the deterrent nor rehabilitative potential of anti-begging laws had been realised.

The Constitutional Case

The Delhi High Court decision of 2018 was not the first serious discussion on anti-begging laws in India. In an earlier paper, Usha Ramanathan documents significant parts of the advocacy against such legislation. She notes that Delhi was the site of serious debates on the validity and usefulness of this law in the 1980s, based on pioneering work done by a team at the Law Faculty of Delhi University. The team studied the operation of anti-begging laws to point out various problems in enforcement, arguing that it was doing much to harm rather than help the poor. Subsequently, a writ petition was filed in the Bombay High Court in 1992, challenging the constitutionality of the anti-begging law. A Committee was setup in pursuance of that petition, which conducted studied the law to recommend it be radically re-shaped, as those forced to beg “ought not to be treated as offenders of the law. They need a healing touch of the protective law, not the deterrence of criminal sanction.”

In Delhi itself, in 2006 a single judge of the High Court mused about constitutional arguments while deciding a revision petition in Ram Lakhan [137 (2007) DLT 173]. Justice B.D. Ahmed came down heavily against the order of the lower court challenged before him where the Metropolitan Magistrate had described the beggar as “raising his front paws” rather than hands. Justice Ahmed also tempered the force of the anti-begging law but could not rule on its constitutionality in revision proceedings. This did not stop him from discussing the topic, though, and he noted how criminalisation of begging seemed contrary to the right to freedom of speech and expression guaranteed under Article 19(1), as well as a clear violation of the right to life safeguarded by Article 21.

The Division Bench decision in Harsh Mander v UOI builds on these cues. It held the provisions criminalising begging contrary to Article 14 and Article 21 of the Constitution. It notes that failure to distinguish between voluntary and involuntary begging renders the classification arbitrary, the wide definition of begging made the law over-inclusive in scope, all of which made the provisions “manifestly arbitrary” and contrary to Article 14 [Paragraphs 14-19]. The Court then moves on to Article 21: detention of persons to “ascertain the cause of poverty” is held contrary to Article 21 [Paragraph 20]. This is followed by a long exposition of the “contours” of that right [Paragraphs 21-26], possibly to make the claim that as the state is responsible for alleviating poverty, criminalising it is not the right answer [Paragraphs 27-31]. Finally, it reiterates that legislation penalising persons “compelled” to beg is in the “teeth of Article 21” [Paragraph 33]. The Court also claimed another reason for reading down these provisions – the wastage of public funds as Certified Institutions were lying unused [Paragraph 39].

Notably, in striking down the several portions of the anti-begging law, the High Court faced no real opposition from the government – both the erstwhile Congress regime and the current Aam Aadmi Party government agreed that the law was outdated and could go. Perhaps this is responsible for the paltry reasoning on display in the judgment which could have just been a consent decree. I highlight two problems. First, the decision does not discuss Article 19(1) claim even though it was made before the Court. In doing so, does the Court indirectly support the idea of begging itself not being protected speech? By refusing to discuss the argument altogether, we are left to wonder. Second, there is much to be considered on the aspect imposing constitutional limits on criminalisation of conduct per se, as the Supreme Court had been considering recently in petitions challenging the validity of Sections 377 and 497 of the Indian Penal Code, 1860. As was discussed in context of the adultery hearings, the legal challenge can be solely based on arbitrary classifications, or can be about whether the underlying conduct should be criminal, and courts must be clear in how they treat these separate issues. The High Court does not provide this clarity, and its lack of analysis is even more problematic in light of the remarks made by the Court at the end, where it stated that a well-crafted legislation criminalising “specific types of forced beggary” and for curbing the “racket of forced begging” might survive constitutional scrutiny [Paragraphs 36, 46].

Conclusions

Compare this decision in Harsh Mander to the 2009 decision in Naz Foundation, where contested claims helped the Delhi High Court to fully explore various arguments, in a decision which continues to be celebrated for its visionary approach. Perhaps because there was no real contest at the bar, and the speed with which the verdict was delivered (the judgment was reserved on August 7), the decision in Harsh Mander does not scale the heights of Naz Foundation, and I highlighted how the High Court failed to fully discuss the legal issues at the heart of the case. Even so, the decision in Harsh Mander does share the truly awesome transformative potential that Naz Foundation also had. Since criminalisation of begging is done in 20 states, and the underlying legal provisions are either identical or nearly-identical to all of them, the Delhi High Court’s decision in Harsh Mander is poised to either stand out like a sore thumb, or spark nationwide reform. I sincerely hope it is the second.

 

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

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

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

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

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

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

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

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

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

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

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

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.
 

Guest Post: The Trans Bill and Its Discontents – II

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

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

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

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

Non-Discrimination

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

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

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

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

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

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

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

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

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

Provisions on Residence

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

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

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

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

Provisions on Begging

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

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

Conclusion

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

 

Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

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

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

The constitutional framework

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

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

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

The (current) Transgender Bill

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

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

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

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

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

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

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

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

Conclusion

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

 

 

Monday: An Important Case on Religious Freedom before the Supreme Court

On Monday, the 11th of January, a Constitution Bench of the Supreme Court will begin hearing the case of Central Board of the Dawoodi Bohra Committee v State of Maharashtra. This is a case that could potentially have important ramifications for religious freedom under the Constitution, and the interpretation of Articles 25 and 26. In this post, I will attempt to provide a short primer to the background of the case, and the events leading up to Monday’s hearing.

The genesis of Monday’s hearing lies in a Constitution Bench order passed in December 2004 (eleven years ago!), directing the setting up of another Constitution Bench to consider the correctness of the Supreme Court’s 1962 decision in Sardar Syedna Taher Saifuddin v State of BombayIn that case (yet another) Constitution Bench of the Supreme Court had struck down the Bombay Prevention of Excommunication Act of 1949, on the ground that it violated Articles 25 and 26 of the Constitution. Twenty-five years after the decision in Sardar Syedna [hereafter “the Dawoodi Bohra Case”], in 1986, a writ petition was filed asking the Court to review and overrule its decision. Eight years after the filing, in 1994, a two-judge bench directed the matter to be heard by a seven-judge bench. A seven judge bench was constituted that same year, but it adjourned the case. There was some controversy over whether the matter could be referred directly to a seven-judge bench. In its 2004 order, the Supreme Court observed that only a bench of ‘equal strength’ could question the correctness of a prior judgment; consequently, it was not open to a bench of two judges to directly refer the matter to a seven-judge bench. After a length discussion on the need for judicial propriety and discipline, the Court held that the matter be placed before a five-judge bench. Only if that bench doubted the correctness of the Dawoodi Bohra Case, could there be a further referral to seven judges, to finally hear and decide the issue.

The key question on Monday, therefore, will be whether the Petitioners can convince the Constitution Bench that there exists sufficient reason to doubt the Dawoodi Bohra decision, and to refer the matter to seven judges. To understand the stakes, therefore, we need to closely examine the Dawoodi Bohra decision.

The Dawoodi Bohra Case: Issues

The Dawoodi Bohra Case involved a challenge to the constitutionality of the Bombay Prevention of Excommunication Act of 1949. The preamble to the Act stated that its objective was to put a stop to the practice of excommunication, that was prevailing in certain communities, since its effect was to deprive members of their ‘legitimate rights and privileges.‘ To this effect, Section 2 of the Act defined excommunication as ‘the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature…’, despite the fact that the determination of such right/privilege might also involve the Court having to rule on questions pertaining to purely religious rites or practices. Section 3 of the Act invalidated any excommunication, and provided for penal sanctions for the same.

The Petitioner was the “dai”, or head priest of the Dawoodi Bohra community, an offshoot of Shia Islam. As the Court noted, “as Dai-ul-Mutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastical powers as religious leader of the community.” The Petitioner further argued that one of his powers, as Dai, was the power of excommunicating recalcitrant members from the community, the result of which was ‘exclusion from the exercise of religious rights in places under the trusteeship of the Dai-ul-Mustlaq.’ By taking away this power, the Bombay Act violated the Petitioner’s right to religious freedom under Article 25 of the Constitution, as well as the Article 26(b) rights of the Dawoodi Bohra community, as a religious denomination, to regulate its own religious affairs and preserve the community by enforcing discipline.

On the other side, apart from questioning whether the Dai had any such power of excommunication, the State also observed that the Petitioner’s rights “do not include the right to excommunicate any person and to deprive him of his civil rights and privileges… [further] it was denied that the right to excommunicate was an essential part of the religion of the community… [and] that, alternatively, assuming that it was part of a religious practice, it runs counter to public order, morality and health.

At its core, therefore, the Dawoodi Bohra Case was about the limits of State intervention into the affairs of a religious community – intervention that, it must be noted, was aimed at recalibrating the balance of power between its members in a more equitable direction. Apart from raising important questions of constitutional law, the case also presents a fascinating philosophical problem: to what extent can a liberal democracy, which respects the rights of cultural communities to exist and propagate, impose democratic or liberal norms upon a community’s internal functioning?

The Majority Opinion

By a 4-1 majority, the Supreme Court struck down the Act. Das Gupta J. wrote the opinion for himself, and two of his brother judges. Referring to a previous decision of the privy council, he commenced by noting that it was now a settled legal position that the Dai did have powers of excommunication. He then observed that, on a survey of precedent, there were two clear principles underlying the interpretation of Articles 25 and 26:

“The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.” 

Das Gupta J. then examined the place of excommunication in several religious systems, quoting Professor Hazeltine’s opinion that the purpose of excommunication is “maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity.” Accordingly, he observed that “excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, “of its own affairs in matters of religion.” Consequently, Article 26(b) was violated by the Act. That the effect of excommunication was to deprive a person of his civil rights was, according to the Court, irrelevant, since Article 26(b) did not carve out an exception for civil rights.

The next question was whether, despite violating Article 26(b), the Act could still be saved by Article 25(2), which allowed the State, inter alia, to make laws for social welfare and reform. Without providing any further reasons, however, the Court simply noted that “the mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss, does not offer sufficient basis for a conclusion that it is a law “providing for social welfare and reform.” Consequently, the Court held that the law violated Article 26(b), was not saved by Article 25(2), and was accordingly unconstitutional.

Concurring Opinion of Justice Ayyangar

In his concurring opinion, Justice Ayyangar observed that the purpose of excommunication was to ensure the preservation of  “the identity of a religious denomination… [which] consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community.” He then noted that “the right to such continued existence involves the right to maintain discipline by taking suitable action inter alia of excommunicating those who deny the fundamental bases of the religion.” Consequently, it was clear that excommunication was a question of religion, and even if the aim of the Bombay Act was to protect civil rights, by outlawing excommunication altogether, it was interfering with the community’s Article 26(b) right to religion.

On the question of Article 25(2), Justice Ayyangar held that laws for social reform were saved only insofar as they did not “invade the basic and essential practices of religion”, because “by the phrase “laws providing for social welfare and reform” it was not intended to enable the legislature to “reform”, a religion out of existence or identity.” And since “faith in [the Dai’s] spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit”, the power of excommunication was clearly an integral part of the religion. Consequently, the Act could not be saved by Article 25(2).

Running through both opinions are the following strains of thought: first, excommunication is essential to maintaining the ‘identity’ or ‘purity’ of religion, by purging it of dissidents – and consequently, it is a matter of religion protected by Article 26(b); secondly, the fact that excommunication deprives an individual of core civil rights is legally irrelevant; and thirdly, the law is not saved by virtue of providing for social reform, because that is not its scope (Majority), and even it it is, the State is not permitted to ‘reform a religion out of existence’ (Ayyangar J.).

Dissenting Opinion of Justice Sinha:

Justice Sinha dissented. He located the Act within a long history of social welfare legislation, noting that its aim was to give “full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others. The legislature had to take the logical final step of creating a new offence by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct.”

After considering precedent on the point, Justice Sinha then framed the question thus: Article 26 guaranteed religious denominations the right to manage their own affairs in matters of religion. However, “activities associated with religious practices may have many ramifications and varieties-economic, financial, political and other-as recognised by Art. 25(2)(a). ” These covered a much wider field than that covered by Article 25(1) or 26(b). Therefore, the Court had to “draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.” Only the former would be protected by Article 26(b). Now, in the case of excommunication, as Justice Sinha observed, the “expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.” Consequently, it was clear that excommunication belonged to the category of acts that might “tough the religious institution“, but were not essentially religious.

Justice Sinha ended his dissent on a rousing note. Comparing the effects of excommunication with that of untouchability, he concluded that:

“The Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by Art. 25 (1) of the Constitution, and not in derogation of it.”

Why the Constitution Bench Ought to Refer the Question to Seven Judges

It is my submission that the Majority opinion in the Dawoodi Bohra Case is incorrect, and Justice Sinha’s dissent is well-reasoned and persuasive. I will not attempt to make a complete argument for overruling at this point, since that is not the question before the Court on Monday. At the very least, however, there is enough reason for the Court to doubt the correctness of the Majority, and refer the question for full argument on merits. This is because:

A. The Majority provides no reason to hold that the Act is not saved by virtue of being a measure of social reform. By contrast, in his dissenting opinion, Justice Sinha places the Act in the tradition of laws outlawing Sati, removing caste disabilities, allowing widow remarriage, and so on. Since the Majority has no answer on point, at least this question deserves a full (re)hearing.

B. Justice Sinha’s argument about the link between civil rights and religion is powerful, and truer to the Constitutional scheme and intent than that of the majority. Previously on this blog, I have had occasion to attack the “essential religious practices test” that has insidiously wormed its way into the Court’s Article 25-26 jurisprudence. Providing blanket protection to “essential religious practices”, as Justice Ayyangar does in his Concurrence, rests upon a misreading of a statement made by Ambedkar in the Constituent Assembly Debates. On 2nd Decmber 1948, Ambedkar had said:

The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ambedkar’s central concern, therefore, was to ensure that in a country like India, where the influence of religion was far more pervasive than in the West, the State’s power to pass reformative legislation should not be hamstrung by giving religion an expansive interpretation. Consequently, he distinguished between questions that are “essentially religious”, and questions that are connected with religion, but deal with other aspects of a person’s life. By a judicial sleight of hand, the distinction has now been converted into one between “essential religious practices” and inessential ones, instead of practices that are “essentially religious”, and those which are incidentally so. And indeed, Ambedkar’s examples of tenancy and succession seem to speak directly to Justice Sinha’s reasoning that, insofar, an ostensible religious act ends up curtailing an individual’s civil rights, it loses constitutional protection.

C. Justice Sinha’s dissent is more in tune with the Indian constitutional secularism. In a detailed study of the Court’s religious freedom jurisprudence, Gary Jacobsohn has argued that it is best characterised as (in his words) “ameliorative secularism”. Ameliorative secularism – as opposed to the “wall of separation” view in the United States – is embodied by an approach to religion that allows the State (or the Court, as the case may be) to intervene in religious practices with the goal of ensuring individual autonomy and freedom. There is a deeper argument of liberal philosophy here: Liberalism is based on the priority of individual freedom; however, it is well understood by now that for human beings, individual freedom and self-fulfilment are often dependent upon participation in, and identification with, affiliative groups (including religious groups). The reason why a liberal Constitution also provides for group rights, therefore, is not because groups are valuable in themselves, but because they are central to a complete and fulfilling life. Consequently, insofar as groups fail to provide the basic conditions of individual autonomy (for instance, by wilfully suppressing women, or by forcing people to conform to the dominant ideology on pain of excommunication), to that extent, the State can intervene through reformatory measures. This idea of ‘ameliorative secularism’ is present in a number of Supreme Court judgments, and most vividly in Gajendragadkar CJI’s opinion in Sastri Yagnapurushadji.

D. Justice Sinha’s dissenting opinion is more in line with the transformative spirit of the Constitution, that recognises that horizontal asymmetries of power are as dangerous and pernicious towards individual freedom as State oppression. Indian civil rights movements leading up to the framing of the Constitution were focused equally on freedom from alien political dominance, as well as freedom from oppressive private power. This is reflected in Ambedkar’s Mahar satyagrahas for temple entry and for the right to draw water from the community well. The Indian Constitution as well, through a number of provisions, recognises this (Articles 15(2), 17, 23 and 25(2)(b), to name four).

I hope to be able to develop these arguments more fully, either as a critique of the Court’s decision, should it choose against referral, or as reasons why a potential seven judge bench should overrule the Dawoodi Bohra Case.