Guest Post: The Hijab Case through the Lens of Intersectionality

[This is a guest post by M. Jannani.]


In my previous post, I had analysed judgments delivered by the Kenyan courts in Mohamed Fugicha v. Methodist Church and how they had applied of the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the uniform, issued by a school in Kenya. I had also discussed how the Kenyan courts had applied the indirect discrimination test laid down in the Sarika case. In this blog, I take a step further and argue why the Hijab case would benefit from the import and application of the Sarika test by Indian courts. The first part of my essay will discuss why the direction issued by the pre-university education department of the Karnataka government has the effect of intersectional discrimination upon female Muslim students. The second part will discuss why the indirect discrimination tests laid down in Fraser v. Canada or Griggs v. Duke Power Company should not be applied by the court to the Hijab case. In the third part, I examine how the principle of reasonable accommodation interacts with the doctrine of indirect discrimination and its relevance to the present case.

Intersectional discrimination

In Navtej Johar v. Union of India , Justice Chandrachud’s concurring opinion recognized that claims of discrimination can be made on more than a single ground under article 15 of the Constitution of India. This view was affirmed by the Supreme Court in Ravinder Kumar Dhariwal v. Union of India.  In Patan Jamal Vali v. The State of Andhra Pradesh the Supreme Court discussed in length the difference between single axis discrimination and intersectional discrimination. It also specifically held that:

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.(Emphasis mine)

The restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities. This is best captured by the following excerpt from an article by Maleiha Malik titled Complex Equality: Muslim Women and the ‘Headscarf’ which explains how the restriction imposed by different governments on headscarves worn by Muslim women is not only an attack on their religion but also a form of gender-based discrimination:

“One reason that the gender aspects disappears within the analysis is because it uses single axis definitions of equality which are designed to focus exclusively on one ground of inequality, e.g. sex or religion or race. However, the discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination; as well as a qualitative change in how multiple discrimination undermines Muslim women’s agency. The structure of single-axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discriminatione.g. sex and religion and race. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination. The need for a single hypothetical comparator within single axis equality forces a stark choice. If gender is chosen then majoritarian definitions of woman may marginalise the needs of Muslim women. If religion is preferred then this often reflects the needs of the Muslim man as the representative of religion rather than Muslim women. Complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy. As well as examining gender oppression by Muslim men within minority Muslim communities, complex equality also takes into account the power of the state and majority women vis a vis Muslim women.” (Emphasis mine)

Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities- gender and religion. Hence, the restriction is one that has an effect of intersectional discrimination.

The courts should avoid the application of the tests laid down in Fraser or Griggs to the Hijab case

I will start by acknowledging that the doctrine of indirect discrimination is in its nascent stages of legal development in India. But that shouldn’t stop the courts from applying the doctrine of indirect discrimination to the Hijab case which is a textbook case of indirect discrimination – one where the restrictions may seem facially neutral, but has a disparate impact on female Muslim students who wear the Hijab. The Indian Courts on the question of indirect discrimination have relied on the Fraser v. Canada and Griggs v. Duke Power Company, as had been mentioned in a previous essay on this blog. I argue, why the courts should not apply the two tests in this specific case.

As I had mentioned in the previous section, the current case is one that involves a group of persons (female Muslim students) who face discrimination due to their intersecting identities. In Griggs v. Duke Power, the question before the Supreme Court of the United States of America was whether the employment requirements had a disparate impact on African-Americans because of their race. In the case of Fraser v. Canada, the Supreme Court of Canada evolved the indirect discrimination test in a case where a pension plan had an effect of adverse impact discrimination on women. Thereby, it can be observed that the courts in these two cases have evolved the test in the specific context where the individuals have been subjected to indirect discrimination on a singular aspect of their identity i.e., race or gender.

These tests have been applied by the Indian Courts primarily in cases of indirect discrimination where a group of persons or an individual has been subjected to discrimination on the basis of one factor of their identity. For example, in Nitisha v. Union of India (where the Supreme Court applied the Fraser test), the court looked into whether the requirement laid down for women to attain permanent commission in the Indian Army was one that had the effect of gender-based discrimination. Similarly, in Madhu v. Northern Railways (where the Supreme Court applied the disparate impact principles laid down in Griggs v. Duke Power) the Delhi HC looked into indirect discrimination where the discriminating factor was only gender.

On the other hand, In Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court remarked on the dangers of courts adopting a legal analysis which looks at discrimination only through a single axis in cases where an intersectional approach is required. The relevant parts of the judgment are as follows:

“A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”. Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that “but for” that identity, they would have been treated in the same way as a comparator. Therefore, their treatment is irrational and unjustified.

By exhibiting attentiveness to the ‘matrix of domination’ created by the intersecting patterns at play, the Court can more effectively conduct an intersectionality analysis. A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.(Emphasis supplied)

Thereby, tests laid down in Fraser or Griggs which have been formulated in a context where the affected persons were subjected to discrimination on a single factor of their identity should not be applied to the Hijab Case wherein the persons are being exposed to indirect discrimination due to their intersectional identities. If either of the two tests are applied to the latter case it renders invisible the discrimination faced by the female Muslim students by putting them into a homogenous religious group of ‘Muslims’ and does not acknowledge the specific dimension of oppression that interacts with their religious and gender identity. 

The present case demands for the import of the test laid down in the Sarika judgment

In the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School , the England and Wales High Court examined whether a girl student from a minority religious community in the region i.e., the Sikh community, was subjected to indirect discrimination. As one can notice, the judgment begins with a recognition of how ‘school girls’ had lost cases before the court where they exerted their right to wear articles of faith along with their school uniform. The judgment also recognises her gender and religious identification, and addresses her as a ‘Sikh girl’ or ‘Sikh school girl’, resulting in acknowledging her intersectional identity. Similarly, the Kenyan Court of Appeals decision in Mohamed Fugicha v. Methodist Church looked into the question of indirect discrimination in a case where hijabs were restricted due to which a certain groups of students faced indirect discrimination. The group in this case were female Muslim students who were affected by the discrimination due to their intersectional identities (religion and gender). The Kenyan Court of Appeals applied the test laid down in the Sarika judgment. Though the courts may not have explicitly addressed the aspect of intersectional discrimination of persons in these cases, they have applied the specific test to recognise the indirect discrimination, where they have identified the groups with their intersectional identities as either ‘Sikh school girl’ or ‘female Muslim students’ as the case maybe. Thereby, Sarika test is more appropriate to cases where the doctrine of indirect discrimination is invoked with respect to persons who may be disparately impacted due to their intersecting identities since they formulated and applied in such contexts.

The Sarika judgment and the Essential Religious Practices Test

The judgment in Sarika referred to the following factors laid down in the case of R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 to access whether a religious belief in the case was one that was genuine:

(a) …when the genuineness of a claimant’s professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…”;

(b) …the court is concerned to ensure an assertion of religious belief is made in good faith ‘neither fictitious, nor capricious and that it is not an artifice’…”;

(c) …emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of other professing the same religion…”; and that 

(d) …the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

It can thereby be seen that the third factor for accessing whether a religious belief is genuine expressly states that the court should not embark on an inquiry and judge such a practice on the metric of some objective standard such as the source of the material upon which the person based their religious belief on. Similarly, Kenyan Court of Appeals while applying the Sarika test in Mohamed Fugicha held:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

Therefore, if the Sarika test is applied to the Hijab case, to prove the whether the belief is genuine in the case a claim of indirect discrimination is brought, the court will only need to look into whether the belief is genuinely held. It need not apply the Essential Religious Practices test.

Reasonable Accommodation and Indirect Discrimination

In NALSA v. Union of India, the Supreme Court recognized that the principle of non-discrimination goes beyond the prevention of discrimination and extends to remedying systemic discrimination that persons may suffer due to their identities. One such remedy is the notion of ‘reasonable accommodation’.  The following is the relevant portion of the judgment:

In international human rights law, equality is found upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.

In Madhu v. Northern Railways, while addressing the aspect of indirect discrimination the Delhi High Court referred to the following excerpt from the judgment in Jeeja Ghosh v. Union of India:

“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.”

It is important to interpret this reference by understanding what the judgment in Jeeja Ghosh addressed. The Supreme Court in Jeeja Ghosh recognised the principle of reasonable accommodation for disabled persons (who were systematically discriminated in this case) in a bid to remedy discrimination that they had faced. It also mentioned that such reasonable accommodation has to be made in the interest of substantive equality.  Therefore, when the Delhi High Court in Madhu referred to this specific excerpt, it in effect recognised that remedying discrimination also includes within it allowing reasonable accommodation to those groups that face systemic discrimination beyond the realm of disability.

Similarly, in Nitisha v. Union of India, the court mentioned, while referring to the judgments in Jeeja Ghosh v. Union of India and Vikas Kumar v. UPSC, that the Supreme Court has recognised reasonable accommodation as a ‘substantive equality facilitator’ while discussing indirect discrimination. Thereby it can be noticed that the courts have acknowledged the need for the principle of reasonable accommodation to be applied to cases involving indirect discrimination for the realisation of substantive equality.

The Supreme Court in Ravinder Kumar Dhariwal v. Union of India held that the initiating disciplinary proceedings against a mentally disabled person (in the said factual background) amounted to indirect discrimination. The judgment referred to the case of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, and recognised that in case prima facie discrimination exists, the burden shifts on the person or entity who discriminates to justify the discrimination and to prove that it did indeed provide for reasonable accommodation. The Supreme Court used this three stage test while discussing indirect discrimination. The relevant extract is as follows:

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU 83, the Canadian Supreme Court held that once it is established that prima facie discrimination exists, the burden shifts on the employer to justify the discrimination, which involves proving that it provided reasonable accommodation. The court developed a three-stage test based on proportionality to determine whether an employer may use the bona fide occupational requirement.

Thereby, the burden in the present case, will fall on the relevant authorities of the Karnataka government to prove that measures to allow reasonable accommodation were provided for the students who are at the receiving end of the discrimination. It must however be kept in mind that Indian Courts have explicitly recognized the principle of reasonable accommodation, for the most part, in cases relating to disability rights.

Conclusion

The judgments delivered by the Indian courts on indirect discrimination are a testament to transformative constitutionalism, one where the courts have not hesitated to borrow from other jurisdictions in order to ensure that there is not a formalistic interpretation of equality. Even though the Supreme Court of India has commented in certain judgments (such as Nitisha v. Union of India) on how the doctrine of indirect discrimination is at its nascent stages, one can observe that that hasn’t stopped the courts from using the doctrine in those cases or expanding the contours of the doctrine’s application with due regard to the specific nature of each case. Such a commitment to substantive equality, in my opinion, is only strengthened, when the unique nature of the interaction between indirect discrimination and intersectional discrimination is recognized in the Hijab case.

Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya

[This is a guest post by M. Jannani. Previous posts on the Hijab Case can be found here and here.]


Recently, the Karnataka State Government pre-university education department issued a direction invoking 133(2) of the Karnataka Education Act, 1933 which in effect restricted female Muslim students from wearing hijab in educational institutions that are under the its jurisdiction. The order reportedly stated that:

“Invoking 133 (2) of the Karnataka Education Act-1983 which says a uniform style of clothes has to be worn compulsorily. The private school administration can choose a uniform of their choice”

Though on the face of it, the notification may seem neutral, the point lies in disparate impact it has had on female Muslim students whose self-expression and religious practices have been jeopardised. This piece discusses the judgment of Fugicha v. Methodist Church in Kenya which used the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the usual uniforms prescribed by a school in Kenya. It also aims to contextualize the judgment’s relevance to the doctrine of indirect discrimination, which has already been recognized by Indian courts.

Background

On the 22nd of June 2014, there was a request made by the Deputy Governor of Isiolo county to allow Muslim girl students to wear hijab and white trousers in addition to the already prescribed uniform in St. Paul’s Kiwanjani Day Mixed Secondary School (“the school”). Approximately a week after the request was made, Muslim girl students wore both the hijab and white trousers along with the school uniform that was prescribed by the school. They were then asked to revert back to the dressing in the uniform that they had to wear before the request was made. The county director passed a decision that Muslim girl students should be allowed to wear the hijab and white trousers along with the school uniform. However, the Methodist Church in Kenya (“the Church”) opposed it and argued that this particular move allowed for preferential treatment of female Muslim students. It also termed the move as a violation of natural justice and the rule of law, while supporting the dress code that did not (according to it) permit the exhibition of religious symbols.

At the outset it is important to note that Constitution of Kenya expressly recognizes the right against indirect discrimination in article 27 which states as follows:

“27 (4) The state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another on any of the grounds specified or contemplated in clause (4)”.

Given this background, the Kenyan Courts, among other questions in the present case, were tasked with the role of examining whether the banning of hijabs in schools amounted to an act of indirect discrimination, which violated article 27 of the Kenyan Constitution.

Decision of the High Court

The High Court observed that the Republic of Kenya is a secular country and since article 8 of the Kenyan Constitution states that there cannot be a state religion, the school was not justified in allowing female Muslim students to wear a hijab. It also stated that they should revert back to the uniform. The judgment further held that not having such restrictions on the uniform for female Muslim students would amount to preferential treatment over their non-Muslim peers.

In my opinion, the court terming the move to allow female Muslim students to wear hijabs being called special or preferential treatment was erroneous and ran contrary to the principles of indirect discrimination. These principles were, for instance, laid down by the judgment of the Constitutional Court of South Africa in MEC for Education: Kwazulu-Natal v. Navaneethum Pillay. In this case, a girl student wore a nose stud (which formed a part of her cultural belief as a Hindu) to her school. Her school found it to be a violation of the uniform dress code and objected to her wearing the nose stud. This restriction was constitutionally challenged. The Constitutional Court of South Africa held that such restrictions would have an effect of indirect discrimination on those whose cultural practices are compromised. The relevant extract of the judgment is as follows:

“It is those learners whose sincere religious or cultural beliefs or practices are not compromised by the Code, as compared to those whose beliefs or practices are compromised. The ground of discrimination is still religion or culture as the Code has a disparate impact on certain religions and cultures. The norm embodied by the Code is not neutral, but enforces mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms. It thus places a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. In my view, the comparator is not learners who were granted an exemption compared with those who were not. That approach identifies only the direct effect flowing from the School’s decisions and fails to address the underlying indirect impact inherent in the Code itself.”

Decision by the Kenyan Court of Appeals

The Court of Appeals in Mohamed Fugicha v. Methodist Church in Kenya looked into whether the restriction on wearing hijabs was a violation of article 27 of the Kenya’s Constitution. To determine whether the restriction on female Muslim students wearing hijabs on their uniforms was an act of indirect discrimination, the court imported the test that was laid down in the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School. In the case of Sarika, the English and Wales High Court looked into whether a Sikh girl student could be restricted from wearing a Kara, which was of immense significance to her faith. The following four step test was laid down in the Sarika judgment, and was affirmed by the Kenyan Court of Appeals :   

“(a)  to identify the relevant ‘provision, criterion or practice’ which is applicable;

(b) to determine the issue of disparate impact which entails  identifying a pool for the purpose of  making a  comparison of the relevant disadvantages;

(c) to ascertain if the provision, criterion or practice also  disadvantages the claimant personally;

(d) Whether this policy is objectively justified by a legitimate aim; and to consider, if the above requirements are  satisfied, whether this is a proportionate means of achieving a legitimate aim.”

When applying the above test, the Kenyan Court of Appeals firstly stated the relevant practice to be considered was the restriction imposed by the school on female Muslim students wearing hijab along with their uniform. The court then observed that the ‘pool’ in this case comprised of the female Muslim students and the ‘comparator group’ consisted of the non-Muslim student body. In this context, it made the observation that unlike the ‘pool’, the comparator group’s compliance with the school’s uniform rules did not subject them to disadvantage which was violative of their religious practices and beliefs. While looking into whether the criterion or practice disadvantages the claimant personally, the court held that the ban on wearing hijabs that existed in the school was one that compromised and curtailed their religious beliefs that were of exceptional importance to the individual. While upholding that the restriction constituted an act of indirect discrimination under the Sarika test, the court expressly stated that:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

The Court of Appeals also referred to the judgment of the Constitutional Court of South Africa in City Council of Pretoria v. Walker to hold that though the rules on the uniform dress code may be perceived as neutral, the still may have a discriminatory effect. The relevant portion of the judgment states as follows:

“The inclusion of both direct and indirect discrimination, within the ambit of the prohibition imposed by section 8(2) of the Constitution, evinces a concern for the consequences rather than the form of conduct.  It recognizes that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination and, if it does, that it falls within the purview of section 8(2) [our Article 27(4)] of the Constitution.”

It was therefore held even though the uniform dress policy was one that appeared to be neutral, by not allowing female Muslim students to wear the Hijab, it amounted to an act of indirect discrimination. This constituted a violation of article 27, Constitution of Kenya. The Kenyan Court of Appeals, thereby, proceeded to outlaw the restriction on wearing hijabs on uniforms.

Decision by the Kenyan Supreme Court

The decision given by the Kenyan Court of Appeals in Mohamed Fugicha v. Methodist Church was appealed before the Supreme Court of Kenya. The majority set aside the judgments of both the High Court and the Court of Appeals on the procedural ground that there was no proper cross-petition to be determined by the courts. The minority opinion delivered by Chief Justice Ojwang termed the view of the Appellate Court in the interpretation of indirect discrimination as ‘appositely pragmatic and rational’ while also holding that it reflects the desirable judicial stand.

Recognition of Indirect Discrimination by Indian Courts

Last year, the Supreme Court in Nitisha v. Union of India applied the doctrine of indirect discrimination while holding that women army officers being denied Permanent Commission (“PC”) by the Indian Army was discriminatory. Through the judgment it acknowledged that though certain rules or laws appear to be neutral they may have a disparate impact on certain groups/ communities of people due to their identities. While doing so, the Supreme Court of India, similar to the Kenyan Court of Appeals, referred to the Constitutional Court of South Africa’s judgment in City Council of Pretoria v. Walker. A similar reference to the decision of the South African court was made in the decision of Madhu v. Northern Railways. which also looked into the doctrine of indirect discrimination.  Thereby, it can be observed that the Indian courts have not hesitated in borrowing the interpretation of the indirect discrimination from jurisdictions that have expressly recognised. However, to determine whether an act constituted indirect discrimination, the Supreme Court in Nitisha had adopted the Fraser v. Canada test as opposed to the test laid down in Sarika which had been adopted by the Kenyan Court of Appeals.

Conclusion

Though the Kenyan Court of Appeals judgment in Methodist Church in Kenya v. Mohamed Fugicha was set aside by the Supreme Court of Kenya (albeit not on the merits), it can be seen that the Court of Appeal’s interpretation of the doctrine of indirect discrimination in the specific context of the restrictions on wearing hijabs over uniforms is one that is extremely relevant. The doctrine of indirect discrimination plays an important role in opposing state action that may have a perversely disproportionate impact on those who face intersectional discrimination as has been demonstrated by the Kenyan Court of Appeals. The application of this doctrine by the Indian Courts in the way the Court of Appeals did to outlaw the restriction on hijabs will, in my opinion, be of critical importance to the realization of substantive equality.

Notes from a Foreign Field: The South African Constitutional Court on the Rights of Domestic Workers

Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular,  repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.

In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.

Equality and Non-Discrimination

It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.

Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:

… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)

Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:

It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)

It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):

Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)

Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:

The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)

Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.

Dignity

The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:

Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)

This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)

Analysis

The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.

The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.

This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).

The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.

 

 

 

 

 

 

Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks

I am grateful for all the engagement with my initial post on the legitimacy of the Supreme Court’s order mandating free testing for Covid-19. Some of these have been published as responses and rejoinder in this series (unfortunately, for reasons of space, I could not publish all). In this concluding post, I want to briefly address and clarify some of the core issues that have emerged – both on the blog and in the public domain – over the course of the discussion.

Let me start by reiterating that the Supreme Court’s order should have stated that private labs would be reimbursed by the State for free Covid-19 testing, and that a mechanism for this ought to have been worked out before the interim order was passed. That is a significant lacuna in the order. In what follows, I base my arguments on the premise that the State is indeed paying for free testing.

The Policy/Budget Argument 

The argument that has been most frequently made is that the Court’s order is an impermissible intervention into the policy sphere – and a violation of the separation of powers – because it effectively directs the government on how and where to spend its (finite?) resources. To this, there is a straightforward answer: the effective enforcement of almost any right depends upon creating infrastructure, which costs money. For instance, the right to vote requires polling booths and voting machines. The right to free association and assembly presumes the existence of policing. And so on. Consequently, the budgetary argument gets things back to front: the question is not whether a Court order interferes with the budget and is therefore illegitimate, but whether the Court order does or does not enforce a constitutional right. If it does, then the impact on the budget is a collateral issue. The whole point about enforceable rights is that – to go back to Ronald Dworkin – they act as “trumps” against policy goals. In the present case, therefore, the key issues are twofold: what rights are at play (I have argued that these are the rights to equality read with the right to health), and whether lack of access to testing constitutes an infringement of these rights (I have argued that the nature of the coronavirus pandemic is such that it does).

The Parade of Horribles Argument

It is then argued that there is no principled justification for restricting the scope of the Court’s order to free Covid-19 testing alone, and that the logic of the argument essentially requires free and universal access to healthcare. Now, to start with, I do not think that framing universal access to basic healthcare as a constitutional right is necessarily far-fetched: in countries all over the world, State responses to coronavirus have revealed that a lot of what seemed beyond the realm of possibility, practicality, or feasibility, was actually nothing more than a constraint of political ideology (Spain’s experiments with a universal basic income being a classic example). Consequently, while the modalities of effectuating a universal right to free basic healthcare requires the kinds of policy decisions that elected representatives make (a point that I shall come to later in this piece), the fact that free Covid-19 testing belongs to the same family of arguments that view healthcare as a constitutionally guaranteed right is not a disqualification.

However, that said, the argument for free Covid-19 tests does not automatically translate into a constitutional right to an NHS-style healthcare system, even as a necessary logical consequence. This is why, in the initial post, the point was made that what is at stake in this case is the right to health read with the right to equality. I specifically say this because of the nature of the pandemic, which – when combined with the national lock-down – means that the wealth-based barriers to testing affect not just the sufferer, but clusters of low-income neighbourhoods. The issue of testing, therefore, is directly related to structural or systemic discrimination (based on socio-economic class); it is not simply about an individual right to healthcare that is defeated because of financial barriers.

The Path Independence Argument

In his post, Goutham Shivshankar argued that we could accept that there exists a basic right to health, but that at the same time, there are different ways to achieve that (free testing being only one of them). According to this argument, while the right exists, the pathway towards it is a question of policy, which is up to the government to decide.

This tracks a familiar objection against the enforcement of socio-economic rights, and there are two responses to this. The first is that the Court’s order was an interim order, and was made in the presence of government counsel. If the government had an alternative pathway towards enforcement of the right to health, that could have been put forward during the hearing (indeed, socio-economic rights cases are normally dialogic in character, for exactly this reason).

However, there is a more important point here, which is that even in socio-economic rights cases, there is a “minimum core” – or a threshold – that is non-negotiable. For the reasons discussed in my initial post (summarised above) – as well as in Karan’s post – it is my view that in the case of the Covid-19 pandemic, testing is that minimum threshold, without which the right becomes illusory. Shivshankar takes the example of an alternative method – that the government provides testing kits and then allows Rs. 500 to be charged for the tests. I disagree strongly with the argument that because poor people spend Rs. 500 on quacks anyway, they should have no problem spending Rs. 500 on a test; however, that apart, if we slightly tweak the example, this is actually an excellent demonstration of how the Supreme Court’s order does actually allow for path-independence, subject to a threshold: because the government could choose to provide the testing kits and then reimburse private labs Rs. 500 per test – or it could reimburse them the full cost. What the Order says is that there should be no price barrier for accessing testing, as that is the threshold of enforceability; how that is accomplished is left to the government.

The Unintended Consequences Argument

It has then been argued that the Order is effectively unimplementable, and will lead to unintended consequences: for example, the government might stop buying PPE equipment, or testing kits, or dramatically reduce testing to make up for the budget shortfall; to address that, then, the Court will be sucked deeper and deeper into a policy vortex, and end up “supervising the pandemic.”

However, State action to subvert Court judgments is neither new, nor confined to the domain of socio-economic rights; recall classic examples where, following Court judgments to desegregate a swimming pool, city municipalities chose to close the swimming pool altogether rather than allow white and black people to swim together. The objection here is of a similar kind, and the answer is of a similar character: there exist enough tools under existing judicial review mechanisms for a Court to be able to gauge when a change in government policy is directly designed to circumvent its orders – indeed, just the basic requirement of asking the government to justify the change in policy will often reveal that there was no good reason for it other than circumvention (in this case, for example, consider the vast amount of money that has already gone into the PM-CARES fund); limited judicial enforcement to prevent that does not damage the separation of powers.

Conclusion

Readers of this blog will be aware that I am no fan of the Court’s past record when it comes to supervising government policy under cover of an expansive interpretation of Article 21. However, for the reasons advanced above, I am not convinced that an Order designed to mitigate the discriminatory impact of a price-barriers to testing in the context of a nationwide lockdown, which itself was designed to tackle a global pandemic, is an overreach. There are a number of factors about the Covid-19 pandemic, and the State’s responses to it, which – in my view – justify this Order.

It is clear, however, that we have not heard the last of this. The mechanism for reimbursement remains to be worked out, and various applicants have moved the Court asking – inter alia – that free testing be restricted to low-income groups. I will conclude by voicing my skepticism about this intuitively plausible solution: the whole point of a right is that it is universal in character. The point is defeated if you start means-testing in order to identify who deserves or does not deserve to access the right. If, therefore, the prior arguments in this essay are sound, free testing should be universal, and not selective (to the equally universal question of how do we pay for it – the State’s powers of progressive taxation exist for exactly that).

 

Gender Equality in the Armed Forces

[Editor’s 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 a former 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.]


On this blog, we have discussed in some detail the judicial approach to gender discrimination under the Constitution. Two recent judgments of the Supreme Court – delivered by a bench of Chandrachud and Rastogi JJ – have made an important contribution to contemporary jurisprudence on the subject. Both concerned the intersection of service law and gender equality – and, in particular, gender equality in the armed forces, a particularly fraught and thorny topic.

Babita Puniya

Secretary, Ministry of Defence v Babita Puniya concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of “females” into the army except where – and to the extent that – the Central Government might allow. In 1992, the Union Government issued notifications allowing women to join certain branches/cadres of the army (all were non-combat roles). These notifications – which were intended to operate for a stipulated period of five years – were later extended in 1996, 2005, and 2006, along with promotional opportunities. Then, in 2008, the Ministry of Defence issued a Circular authorising the grant of Permanent Commissions [PCs] to women, but only prospectively, and only in certain cadres.

Adjudicating writ petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the army on Short Service Commissions [“SSCs”], were entitled to PCs on par with their male colleagues. The Union of India appealed this decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.

Before the Supreme Court, the Union argued that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” (paragraph 28), and that in any event, Article 33 of the Constitution allowed for the fundamental rights chapter to be restricted when it came to the Armed Forces. It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.” (paragraph 31). In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.

These submissions were rejected by the Court. Chandrachud j. began his analysis by noting that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On the other hand, from 1991, there had been an “evolutionary process” towards inducting women into the armed forces (paragraph 50) – to the extent that in the 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women. In fact, this created an internal contradictions within the submissions of the union of India, as:

The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. (paragraph 52)

Going further, however, the Chandrachud J. noted that:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are „too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. (paragraph 54)

On a similar basis, the Court also rejected the blanket prohibition upon the grant of PCs to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis (paragraph 67). In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

Annie Nagaraja

The case of Union of India vs Lt. Cdr. Annie Nagaraja – involving Permanent Commissions in the Navy – was somewhat more complex. According to Section 9 of the Navy Act, women are not eligible for enrolment in the Indian Navy, except where – and on such terms and conditions – that the Central Government might specify (Chandrachud J.’s judgment refers to an interesting piece of history – at the time of the drafting of the Navy Act in 1957, there was a strong dissenting note in the Parliamentary Joint Committee objecting to this exclusion of women).

Now – simplifying the position somewhat – under the Navy Regulations, one of the qualifications for being inducted into the navy on a Short Service Commission [“SSC”] is that the applicant must be an “unmarried male.” SSC officers may subsequently be granted Permanent Commissions [“PCs”] on the basis of vacancies and suitability. In 1991, the Union Government issued a notification opening up certain branches of the Navy to women. Women, therefore, were entitled to take up SSCs, and it was noted that the policy for the grant of PCs would be formulated subsequently. Subsequently, in 1998, by another Notification under Section 9 of the Navy Act, more branches of the Navy were opened up to women. Soon after that in, in 1999, in a communication from the Ministry of Defence, it was clarified that women could serve on board ships, and that the policy governing PCs would be that which was already stipulated in the Regulations (see above).

Then, in 2008, the MoD issued another communication, stating that PCs to women SSC officers would be considered prospectively, and limited only to certain branches. In other words, women who had joined the Navy as SSCs following the opening up of recruitment after 1991, would not be considered for PCs. It was this that triggered the initial challenge before the Delhi High Court and the Armed Forces Tribunal, before finally winding its way to the Supreme Court.

Chandrachud J. began his analysis by noting that both the 1991 and 1998 Notifications lifted the bar for enrolment of women into the Navy, in certain branches (without expressly limiting them to SSCs) (paragraph 60). Consequently, when in 1999 the Government stipulated that the normal Regulations would apply for grant of PCs (which made them conditional on vacancies, suitability, and a recommendation from the Chief of Naval Staff), it was obvious that this would “cover both men and women serving on SSCs (paragraphs 64 – 65, 67). Consequently, the 2008 communication – which did not refer to these previous notifications and communications – could not change that fact.

As with Babita Puniya’s Case, however, the judgment’s bite lay in the analysis that came after the hard work of service law was done. In a section called “The Stereotypical Sailor”, the Court noted that the government had attempted to justify its stand by arguing that sea-duties were ill-suited for women as “there is no return to base”, and that Russian naval vessels had no separate bathrooms for women (paragraph 72). These arguments were roundly rejected, with Chandrachud J. noting that “the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.” (paragraph 74), and that:

arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies. (paragraph 74)

The Court concluded by moulding the relief in accordance with the different positions occupied by different sets of claimants, on the basis of the legal position that eligibility for PCs flowed from the 1991 and 1998 Notifications, and that the 2008 Communication making PCs prospctive from that date, was not valid (to that extent).

Analysis

Both judgments raise a few interesting issues. The first is that they add to the growing body of jurisprudence that brings the anti-stereotyping lens to issues of gender discrimination. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities – broad generalisations that reflected deep-rooted beliefs and assumptions about gender roles in society. As we have argued before on this blog, Articles 14 and 15 rule out discrimination based on such stereotypes and generalisations. While the Court’s historical record on this front – especially in the domain of service law – has been patchy, at least since 2007, there has been a more consistent application of the anti-stereotyping principle. These judgments, with their clear invocation of the principle, will make it even more difficult in the future for stereotype-based arguments to be justified in Court.

Secondly, these judgments reiterate that in a constitutional democracy, the Armed Forces are not – and cannot be – a rights-free zone. While Article 33 admittedly authorises the restriction of fundamental rights to the Armed Forces, any such restriction must be “necessary” for allowing the Armed Forces to fulfil their goals, and the burden of sowing necessity lies upon those who want to exclude the operation of fundamental rights. In both judgments, the Court was careful in how it navigated this thorny area: it reiterated the need for Article 33 to exist, while also ensuring that it could not be used as a sword to cut down the rest of Part III.

Thirdly, these judgments demonstrate an oft-neglected truth: that the Court ought not to bear the sole burden of articulating and enforcing fundamental rights. What is notable about both these cases is – as the Court itself noted in Babita Puniya – that the induction of women into the armed forces had been an evolutionary process that had begun in 1992. The State’s sweeping arguments about the unsuitability of women to be granted PCs, therefore, were undercut by its own evolving policy decisions. This made the task of the Court substantially easier: instead of forcing gender equality down the throat of a recalcitrant institution, it could simply point to how the institution’s own logic was at variance with the exclusionary arguments that it now put forward. Thus, instead of ending up in an adverserial situation – where the Armed Forces justified discrimination and the Court opposed it – what happened here was that the Court engaged in an immanent critique, essentially requiring the Armed Forces to follow their own policies to a logical conclusion.

Fourthly – and relatedly – this also shows, perhaps, the limitations of the possibility of reform through adjudication. Notably, the relevant provisions of both the Army and the Navy Act, which bar the recruitment of women into the Forces except where the government allows it – were not under challenge, and the Court was at pains to point out that fact, apart from also noting that the suitability of women for combat roles was not an issue about it. What would happen, however, if those Sections were to be challenged? Logically speaking, the anti-stereotyping approach – and, more particularly, the Court’s explicit rejection of blanket prohibition of PCs to women in command areas – clearly rules out the blanket restriction on recruitment in the Armed Forces (except where the government permits). Would that be a step to far for the Court to take, especially if the State and the Armed Forces were to take the defence of national security considerations? That would be interesting to see, but at the same time, the Army’s own opening up over the years – combined with the Court’s incremental approach in these cases – probably obviates the immediate imperative for more radical challenges.

The Constitutionality of the Citizenship (Amendment) Act: A Response

[This is a guest post by Shivam Singhania. The piece was written before the passage of the Bill into an Act, and the constitutional challenge to the Act. References to the “Bill”, therefore, may be understood as references to the Act.]


This piece is in response to the piece on this blog titled “The Citizenship (Amendment) Bill is Unconstitutional”. Respectfully disagreeing with the author, I shall endeavour to address the arguments against its constitutionality, and also chart out a path within the bounds of the settled judicial precedent on Article 14.

The bill changes amends the Citizenship Act on two counts – by inserting a proviso in Section 2(1)(b), and by amending clause (d) of the Third Schedule. The first count, i.e., the proviso, provides that ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ will not be treated as an illegal immigrant under the Act, subject to three conditions: (a) he/she entered India on or before December 31, 2014, (b) is exempted by the Central Government under Section 3(2)(b) of the Passport (Entry into India) Act, 1920, (c) is exempted from the application of Foreigners Act, 1946.

(Note: The Passport Act empowers the Central Government to make rules requiring persons entering India to possess passports. It also gives the Central Government power to exempt, conditionally or unconditionally, any person or class of persons from complying with such requirements. The Foreigners Act empowers the Central Government to make orders prohibiting, regulating, restricting entry of non-citizens, i.e., foreigners into India. The Central Government also has the power to exempt any individual or class or description of foreigner from the application of the act. The exemptions for Bangladeshi and Pakistani nationals were issued in 2015, and included Afghanistan nationals in 2016. These exemptions have not been challenged. Further, the same classification exists for the purpose of issuing Long Term Visas (LTV) to nationals of these three countries. The same has also not been challenged.)

The second count, i.e., amendment to the Third Schedule, relaxes the time-criteria for naturalization from at least 11 out of 14 years to at least 5 out of 14 years of residing in India, or being in service of the Government, for ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’.

Admittedly, the constitutional questions rest on the issue of discrimination and non-adherence to ‘equal protection of law’.

CLASSIFICAITON UNDER ARTICLE 14

The Constitutional position, right from Anwar Ali Sarkar to a catena of subsequent cases, is clear that the equality principle envisages like to be treated alike, and consequently allows unlike to be treated differently. Such differentiation, however, has to stand the test of intelligible differentia, i.e. that the basis or principle guiding the creation of different groups meant to be treated differently by the law should be ascertainable and sound. Further, such differentia should have a rational nexus to the object of the law, meaning that t should directly further the purpose that the law seeks to fulfil. Subsequently, the test of arbitrariness was also added in E.P. Royappa.

The classification in this amendment, as rightly described by the author, is on two counts: first – religion of the target group, i.e., Hindus, Sikhs, Buddhists, Jains, Parsis and Christians; and second – country of origin of these groups, i.e., Pakistan, Bangladesh and Afghanistan.

It will be shown in the course of this essay that the principles that ground the above classifications are intelligible and not under-inclusive and serve the object of the amendment and overall, are not arbitrary.

RELIGION, ARTICLE 14 AND ARTICLE 15

Over and above the generality of equality principle laid out in Article 14, Article 15 provides for prohibition of discrimination on specific grounds, such as race, sex, and also religion. This means that any such basis of classification, even if intelligible, cannot pass muster of Article 14 for reason of the specific prohibition in Article 15.

However, Article 15 applies only to citizens. On the other hand Article 14 applies to ‘any person’. Thus, as settled in Chandrima Das and Indo-China Steam Navigation cases, a non-citizen cannot take the benefit of Article 15. Thus, with respect to non-citizens, a classification which has religious inklings cannot be dismissed at the threshold; it will pass muster if it passes the tests of Article 14 discussed above.

We now address the author’s argument based on the concurring judgement of Justice Malhotra in Navtej Johar v Union of India. The author’s inference from certain portions of Justice Malhotra’s opinion Navtej Johar is misplaced. The quoted paragraph – “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy” – lays out the underlying constitutional intent of Article 15. It does not, and is not meant to address the point of whether such grounds transcend Article 15, and apply as a bar upon classification ipso facto, including for non-citizens under Article 14

The following exposition from the judgment, admittedly, is unequivocal: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. However, what begs an answer, and none is provided in clear terms by any judicial precedent, is whether certain grounds, beyond those in Article 15 and thus applicable to non-citizens, are barred at the threshold as the bases of any classification; if yes, then what are these grounds and do ‘intrinsic and core trait(s) of an individual’ qualify as such grounds?

Essentially, the submission of the author, relying on Justice Malhotra’s opinion, is that any classification with semblance to religion is impermissible, since like Article 15, which applies only for citizens, Article 14 contains an inherent bar upon classification on certain grounds, one of which is the notion of core trait/choice/personal autonomy (and religion is a part of that). This, however, has little basis in existing equality jurisprudence. The tests are clear and any classification can exist so long as the tests of Article 14 are met. Beyond that, no inherent barriers have been created for classification under Article 14.

In any case, the proposition that classification rests solely on religion should be taken with scepticism. In the CAA, religion is qualified by persecution. Therefore the two should be considered together. Religion persecution has also been recognized in the Refugee Convention as a form of persecution. Therefore, it cannot be considered as a capricious standard of marking the lines, given that the exact target groups are sought to be protected as recognized by International Convention. Further, the classification is not to create new benefits, but is only to accelerate an existing process as a measure of protection for recognizable and internationally accepted target group that, due to their precarious situation, need such protection. It is akin to any law which may be framed for instance to protect LGBT individuals from countries which provide for capital punishment for them. In that case, it will be a constitutional disservice to accept an argument that they cannot be allowed a dignified life in India because the law classifies on the basis of sex/sexual orientation.

THE PRINCIPLES CONUNDRUM AND UNDER-INCLUSIVENESS

A classic fallacy with the arguments on under-inclusiveness, also reflected in the author’s piece, is that its proponents enlarge either the principle determining classification, or the object of the law beyond their actual bounds, to argue that the classification is narrower than it ought to be.

It will be shown that the author’s purported principles determining the classification is deliberately broad, and the actual principle is more qualified. Therefore, when the purpose is defined properly, the classification is not under-inclusive.

The author, in her piece, considers four principles and finds them inadequate. For convenience, they are reproduced below –

  1. “Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
  2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
  3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
  4. Principle 4: The classification might be limited to singling out persecuted religious minoritiesHowever, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.”

The classic problem of “inadequate principle” is at issue here. The above four principles, if applied, result in the law leaving out some group who ought to qualify. However, it is quite possible that the alleged principles are not actually the principles on which the classification is based.

In this context, let us begin by noting that laying down adequate determining principle for classification in a law lies at the doorstep of the Parliament.

It is submitted that here, the determining principle is not solely based on Partition, or harm. It is also not only about state religion or secular states, or about religious minorities. Determining principles cannot be laid in water-tight compartments, and it is not necessary that the entirety of one ground has to make a determining principle (for instance “all minorities”, or “all persecuted”). More than one ground can qualify the other grounds if the determining principle is specific (for instance, not all minorities but religious minorities, or not all persecuted but persecuted for being a religious minority).

While one set of determining principles takes in the Partition (Pakistan and Bangladesh), and the unique situation of Afghanistan vis-a-vis India, another possible set of principles is not Partition-related. India sees its responsibility as a regional leader in its neighbourhood with a thriving democracy and secular credentials to protect certain classes of foreigners under threat in their own countries. Among many forms of persecution, for now, India considers itself sufficiently prepared to be able to imbibe as citizens through a relaxed process of naturalization, those persecuted on the basis of religion. The next question is, who all and from where all?

The principle is members of communities (religion) not being the state religion of the respective nation. Essentially, it is a loose combination of Principle 2 and 4 described by the author. In other words, the broad sphere of ‘religious minority’ is qualified by its application only with respect to nations with state religions and on minorities being non-believers of the state religion. This is clearer with the altered text of bill, as being circulated in the media, by which the phrase “…persons belonging to minority communities, namely, Hindu, Sikh…” has been replaced with “persons belonging to Hindu, Sikh…”. [Editor’s Note: this is now the text of the Act.]

Therefore, it can no more be argued that the genus was ‘minority community’, and that only six of them cannot be protected (i.e., under-inclusion). The principle is shortened from ‘minority community’ to a principle which is qualified by two other components – applicable to states with a state religion, and applicable for religions not being the state religion. In other words, the principle is narrower than presented. Hence non-inclusion of some is not because of under-inclusion, but because they are not in conformity with the principle for classification. (such as Ismailis or Shias, being another sect of Islam and not a separate religion than Islam), or Myanmar, not included for not having a state religion.

Pakistan, Afghanistan and Bangladesh have a state religion, i.e., Islam. The Sri Lankan Constitution gives Buddhism the foremost place and the Myanmarese Constitution only recognizes the special position of Buddhism as the faith practiced by majority. In any case, if it is still considered that Sri Lanka has a state religion, courts may also take cognizance of data, if provided by the Union of India, of the alleged dwindling rate of the minority population in Pakistan, Afghanistan (less than 1% presently) and Bangladesh (from 23% at independence to 9% presently) of the communities sought to be protected vis-à-vis Sri Lanka (28 % in 1953 to 20% presently) to gather the mischief that the amendment seeks to arrest.

SUMMARY

The classification under Article 14 does not have inherent barriers of impermissibility at the threshold level, and nor does it have to conform to Article 15 when invoked with respect to non-citizens. In this case, the only test needs to be satisfied is the intelligible differentia-rational nexus-non-arbitrariness test of Article 14. The principle underlying the classification is not merely minority or religious minority, but of belonging to group other than the state religion of Pakistan, Bangladesh and Afghanistan (i.e. states with a constitutionally prescribed state religion). The classification with respect to states with state religions, for the benefit of persons not following the state religion, bears a rational nexus with the object of the amendment in protecting such persons facing threat of persecution for reason of non-conformity with their state religion and being eligible for relaxed criteria of immigration and naturalisation in India, and in furtherance of India’s responsibility as the leader in its nation with strong democratic values and emphasis on dignity of life to support victims of religious persecution in theocratic states. The classification, having semblance to a category of vulnerability recognized in international convention and supported empirically (possibly) is therefore not arbitrary.

ICLP Round Table – The Equality Bill 2019: On the Equality Courts

(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)


This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.  

The Idea of Equality Courts and the Need to Establish Them

The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.

For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.    

Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.

One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.

The Desired Functioning of the Equality Courts

The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.

Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.

There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’  

For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.

Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.

The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’

Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.

Concluding Remarks

The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.  

Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.

The Sabarimala Judgment – I: An Overview

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.  

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.

Navtej Johar v Union of India: Rethinking Rajbala, and the Way Forward

(This is the concluding post in our series of essays examining the Supreme Court’s judgment in Navtej Johar v Union of India. An earlier version of this piece appeared in Scroll.)

As the dust settles over Navtej Johar v Union of India, attention must turn to the future. When, last year, the Supreme Court delivered the famous privacy judgment, it was immediately clear that it was both important in its own right, but also, equally important in the possibilities that it opened up for future expansion of civil rights. Navtej Johar – as I mentioned in my initial essay – was itself made possible by the privacy judgment. And Navtej Johar – in turn – now opens up a series of possibilities. Here are three of them:

A. “Manifest arbitrariness” as a ground for striking down laws

As readers of the blog are aware, we have previously discussed the long judicial tussle between the “classification” and the “arbitrariness” tests under Article 14 of the Constitution. To cut the long story short, the traditional rational classification standard under Article 14 has always been deferential towards the State, and incapable of addressing complex inequalities. Arbitrariness was introduced to mitigate the shortcomings of the classification standard, but has itself ended up being rather … arbitrary. Notwithstanding that, there has always been controversy over whether the arbitrariness standard is limited to invalidating executive action (which would, essentially, reduce it to a glorified Wednesbury principle), or whether it can be applied to invalidate statutes as well.

In the Triple Talaq judgment last year, at least two judges out of five held that “manifest arbitrariness” could, indeed, be applied by courts to invalidate statutes. It was unclear whether the “swing opinion” – that of Joseph J. – endorsed this principle. Subsequent judgments (delivered by two judges) appeared to believe that it did. However, the controversy has now been set to rest. In Navtej Johar – as Abhinav Chandrachud points out in his guest post – all five judges partially strike down S. 377 on grounds of manifest arbitrariness.

What does this mean for civil rights? There is one immediate implication. Three years ago, in Rajbala v State of Haryana (which I have analysed here), the Supreme Court upheld the State of Haryana’s amendments to the Panchayati Raj Act, which had imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections. The judgment expressly held that the “arbitrariness standard” could not – and would not – be applied to test the law under Article 14. As Mihir Naniwadekar pointed out at the time, there was a strong argument that the Rajbala bench was bound to apply the arbitrariness standard, under existing precedent. Two judges out of five believed so in Triple Talaq, when they expressly stated that Rajbala stood overruled on this point. And that view has not been vindicated by the verdict of all five judges in Navtej JoharRajbala, therefore, requires reconsideration.

(N.B. I should add that, as previously discussed on this blog, I do not think the arbitrariness standard – as it stands, and without further development – is constitutionally defensible. However, it is what it is.)

B. Discrimination as a contextual enquiry

Justice Chandrachud’s concurring judgment in Navtej Johar argues at great length that the question of whether a law or a rule has a discriminatory effect must be answered by taking into account the background social context in which the law operates. In 2013, in its judgment upholding Section 377, the Supreme Court in Koushal v Naz Foundation had held that in criminalizing “carnal intercourse against the order of nature”, the section only penalized “acts”, and not persons; consequently, the question of discrimination did not arise. In a detailed repudiation of this facile argument, Justice Chandrachud examines how, when Section 377 interacts with the existing social and moral proscriptions, its effect is to confine the LGBT+ community to the proverbial closet, causing great harm to their individuality, personhood, and dignity. Whatever the form of the law, therefore, its effect – when placed within the social context – is discriminatory.

This focus on effect and context has the potential to significantly advance discrimination jurisprudence in India. As an example, take once again the judgment in Rajbala v State of Haryana. While upholding educational disqualifications in that case, the Court noted that it was only education that allowed people to distinguish between right and wrong. What the Court didn’t take into account, however, was that despite our legal and constitutional framework, access to education continues to be skewed along caste, gender, and economic lines, for a multiplicity of reasons (ranging from stereotypes about women’s role in the family, to simple economic stress that does not permit the luxury of sending children to school). This has been pointed out repeatedly, and is well-documented. For example:

A glimpse at Haryana’s background tells us how deeply it is entrenched in patriarchy. It has one of the most skewed sex ratios in India — 877 overall and 837 in the 0-6 year age group. Male literacy rate is 85 pc, against 66 pc for females, a significant gap.

 

Therefore, while the law in Rajbala appeared to be about incentivizing education (a laudable goal), its effect was to further marginalize from the political process those who were already most marginalised. If Chandrachud J.’s reasoning in Navtej Johar is followed, this background context cannot be ignored.

The Supreme Court has an immediate opportunity to correct its error in Rajbala: the State of Rajasthan passed a very similar law at around the same time, which is yet to be adjudicated upon by the Court.

It is, after all, never out of season to dream.

 C. Analogous grounds

In her concurring opinion, Justice Indu Malhotra argues that discrimination on grounds of sexual orientation violates Article 15(1) of the Constitution. Article 15(1) prohibits discrimination on grounds of sex, race, religion, caste, and place of birth. Justice Malhotra takes the view, however, that Article 15(1) covers not only these five stipulated grounds, but also “analogous” grounds: that is, characteristics that bear a family resemblance to sex, race, religion etc. What is common to the “grounds” under 15(1) – Justice Malhotra argues – is that they are either immutable (i.e., impossible or extremely difficult to change), and/or deeply linked to personal autonomy. Sexual orientation, thus, is an “analogous ground”, and therefore protected under Article 15(1).

Malhotra J.’s interpretation is difficult to sustain on the text of Article 15(1), which makes it clear that it refers to a “closed list of grounds” – i.e., the Court cannot add to the five grounds stipulated therein. However, if Justice Malhotra’s view is accepted in future judgments, it does open up Article 15(1) to a range of discrimination claims: for example, age, disability, political belief, and economic status are just a few of the possible “grounds” that can be invoked as analogous, and therefore, protected by a non-discrimination guarantee. Here, once again, the Court must tread carefully, and develop the law in an incremental and rigorous fashion.

Conclusion

For a long time now, the Indian Supreme Court’s thinking on issues of equality and non-discrimination has been static. This is contrary to other jurisdictions such as Canada and South Africa, where judges have deepened their understanding of these questions, over time. Navtej Johar’s judgment provides us with a gateway to updating our own understanding of Articles 14 and 15(1) of the Constitution, to match with ever more sophisticated accounts of what constitutes inequality and discrimination. However, it is only the foundation stone: the future development of the law is now in the hands of the courts.

Guest Post: Navtej Johar v Union of India – On Intersectionality (We’re not quite there yet)

(This is a guest post by Gauri Pillai).

The theory of intersectionality, within feminist jurisprudence, views individual identity as arising from an interaction of several grounds, such as caste, sex, disability, age, religion, race, sexual orientation etc. Originating in the context of understanding the identities of Black women as being shaped by both gender and race, the theory recognises that women are not a monolith, facing a single form of oppression; instead their multiple social identities interact, resulting in unique forms of marginalisation. Intersectional discrimination therefore signifies discrimination suffered on the basis of more than one personal characteristic. Such discrimination is not merely a sum or overlap of discriminatory treatment experienced due to individual grounds, but is instead characterised by a “uniqueness and sharedness” arising from the intersection of the various grounds. For instance, a Dalit woman with disabilities shares experiences of discrimination with persons with disabilities, Dalit individuals and other women. However, she also faces a distinctive form of discrimination due to the interaction of her multiple identities, which is more than a mere combination of discrimination on account of disability, caste and sex/ gender.

Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In interpretation of this provision, courts have placed emphasis on the word “only” to imply that only discrimination on a single ground is suspect under Article 15, thus excluding intersectional discrimination from its scope. For instance, the Calcutta High Court in Mahadeb v Dr BB Sen held, “The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution”. In Dattatraya Motiram v State of Bombay, the Bombay High Court accepted a form of discriminatory treatment as constitutionally valid, arguing, “If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations”. This trend was confirmed in Air India v Nergesh Meerza, where the Supreme Court stated, “[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.

However, previously on this blog, Shreya Atrey has argued that this misinterprets the meaning of the word “only”. Relying on the placement of this word within the text of Article 15(1), which says “on grounds only of” rather than “only on grounds of”, Atrey points out that the word “only” refers to the inappropriateness of certain personal characteristics or grounds being relied on as the basis of discrimination, and does not indicate the requirement of single-ground claims. Further, interpreting “only” to permit solely claims invoking a single ground of discrimination is a partial reading of Article 15(1), omitting to taking into account the phrase “or any of them” which would allow claims to be made under several grounds.

Justice Chandrachud’s concurring opinion in Navtej Singh Johar v. Union of India dismisses the reliance placed on “only” by cases like Nergesh Meerza as a “formalistic interpretation of Article 15” which would render the “constitutional guarantee against discrimination meaningless” [Chandrachud J., 36]. Though Chandrachud J. does not offer a reinterpretation of the text, as suggested by Atrey, the Court does state that discrimination based on “sex and another ground (‘sex plus’)” would fall within the ambit of Article 15 [Chandrachud J., 36].

This seems to indicate clear judicial approval for the theory of intersectionality. However, Chandrachud J. bases his observations on the need for recognising intersectional discrimination under Article 15(1) on a critique of Nergesh Meerza, holding that the approach adopted by the court in the case was incorrect since it failed to adopt an “intersectional understanding of how discrimination operates” [Chandrachud J., 41]. A close reading of Nergesh Meerza, on the other hand, shows that the case concerned discrimination solely on ground of sex. Nergesh Meerza involved a challenge to certain provisions of the Air India Employee Service Regulations, which created significant disparity between male and female crew with respect to service conditions. The Supreme Court, relying on these very differences in service conditions between men and women, dismissed the claim under Article 15(1), stating the discrimination was on ground of “sex coupled with other considerations”. The Court however failed to question the basis on which these “other considerations” were differentially allotted. As Bhatia argues, especially after finding that the nature of work performed by male and female members was similar, the Court should have held that the initial classification, relying on which these “other considerations” were decided, was based on sex. As pointed out by the female crewmembers in Nergesh Meerza, “the real discrimination was on the basis of sex which was sought to be smoke screened by giving a halo of circumstances other than sex”.

Thus, the dictum of the Supreme Court in Nergesh Meerza was certainly incorrect. However this was not due to a failure to account for intersectional identities of women. Rather, it was because the Court did not recognise that the constitution of the separate cadres and fixing of differential service conditions were themselves based on sex, such that the “other considerations” which the Court declared, when coupled with sex, excluded the claim from the scope of Article 15, were products of sex discrimination. Nergesh Meerza is thus not an example for a “sex plus” claim of discrimination; instead it is a case of sex discrimination where the Court omitted to consider that the “other considerations” were also incidents on discrimination on ground of sex.

The Supreme Court, in Navtej Johar, reversed this trend by stating that if the “other considerations” being relied on are stereotypical understandings of the notions of sex, or factors which have a disparate impact on the members of one sex, these cases would not be distinguishable from discrimination solely on ground of sex. For instance, citing Anuj Garg v. Union of India, the Court pointed out that stereotypes regarding socially ascribed gender roles cannot be used as plus factors to argue that discrimination was not only on ground of sex [Chandrachud J., 41]. Similarly, a rule that only people six feet or more in height would be employed in the army cannot be excluded from the ambit of Article 15(1) as being based on sex and height, since height is often an incident of sex, and classification on the basis of height would have a “disproportionate impact” on women [Chandrachud J., 36]. In this manner, the Chandrachud J. in Navtej Johar deviated from the dictum in Nergesh Meerza, where the Court adopted a formalistic interpretation of sex discrimination as a facial classification between men and women, relegating the other manifestations of sex discrimination to “other considerations”.

To this extent, the approach of the Court in Navtej Johar (through the opinion of Chandrachud J.) represents a welcome shift in the interpretation of “only” under Article 15(1). Atrey argues that the technical interpretation of “only” relied on so far by courts excludes both a contextual and an intersectional analysis of discrimination. By going beyond cases of facial classification between men and women to include other manifestations of sex discrimination- such as the use of stereotypes- the Court in Navtej Johar places sex discrimination within the existing socio-political context by including within the ambit of Article 15(1) the gendered aspects of sex discrimination. In this way, the Court brings in a contextual lens to the analysis of discrimination under Article 15. However, the examples relied on by the Court, as identified above, are incidents of discrimination on ground of sex, rather than intersection of sex with other grounds such as race, disability, age etc. This implies that the Court in Navtej Johar did not go the entire way in recognising intersectional discrimination, despite references to the intersectional nature of sex discrimination [Chandrachud J., 36, 41].

Adopting a more holistic view of sex discrimination, as the Chandrachud J. has done in Navtej Johar, is different from acknowledging the unique forms of oppression created by the intersection of multiple identities, of which sex is only one. For instance, in Shayara Bano v Union of India, the claim of discrimination was brought by Muslim women. Though the decision of the Supreme Court in the case has been critiqued (here and here) for failing to account for intersectional discrimination, the case illustrates how multiple grounds- sex and religion- interact to create a distinctive form of disadvantage. Shayaro Bano is thus an example of a claim of intersectional discrimination; Nergesh Meerza is not. The Supreme Court in Navtej Johar appears to have conclusively established a contextual approach towards analysing claims of discrimination under Article 15(1) by rejecting the interpretation of “only” presented in cases like Nergesh Meerza. However, whether an intersectional lens, which would not just allow but also recognise the distinctiveness of a claim invoking multiple grounds under Article 15(1), has been adopted remains to be seen.

In sum, Justice Chandrachud’s judgment in Navtej Johar recognises the concept of contextual discrimination and acknowledges the concept of intersectional discrimination; however, his actual reasoning is limited to the former. For a judgment that incorporates the concept of intersectional discrimination within the framework of Article 15(1), we may have to wait a little longer.

(The writer has recently completed her BCL degree from the University of Oxford.)