The Constitutional Challenge to the Transgender Act

Tags

Equality, gender, privacy, transgender bill, Transgender Rights

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identification, instead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

The Citizenship (Amendment) Act Challenge: Three Ideas

Tags

article 14, basic structure, citizenship amendment act, Equality, Implied Limitations, secularism

Thus far, the constitutional debate around the Citizenship (Amendment) Act has been framed around the following arguments: (a) does the grant of immunity and citizenship to a select group of migrants violate the principle of “reasonable classification” under Article 14, by virtue of the individuals and groups it excludes?; (b) does the selection of groups lack any “determining principle”, and is therefore unconstitutionally arbitrary?; and (c) by privileging religious persecution over other forms of persecution in claims to citizenship, does the CAA violate the basic feature of “secularism”?

In this post, I attempt to move beyond these basic arguments which have – by now – run their course in the public sphere. Beyond reasonable classification, arbitrariness, and secularism, I will suggest that there are deeper reasons to hold the CAA unconstitutional. As it will become clear, a closer engagement with these reasons will require us to rethink some of our long-held assumptions about Indian constitutional law. As I shall argue, however, these are not radical or off the wall arguments, but rather, implicit within constitutional practice. I shall argue, first, that the principle of equality under the Indian Constitution has moved beyond the classification and arbitrariness tests (as I have argued before); secondly, that – contrary to a widespread assumption in our legal culture – citizenship laws deserve greater judicial scrutiny instead of judicial deference; and thirdly, that notwithstanding the language of Article 11 of the Constitution, there exist implied limitations upon Parliament’s power to confer or withdraw citizenship – limitations that flow from the existence of equally important and fundamental constitutional principles. 

The Evolving Idea of Equality

In the 1950s, heavily influenced by American jurisprudence, the Indian Supreme Court adopted the “classification test” for determining violations of the guarantee of equal treatment under Article 14. The “classification test”, as everyone knows, required that in order for a law to pass Article 14 scrutiny, there must exist (a) an intelligible differentia between the individuals or groups that are subjected to differential treatment, and (b) a rational nexus between that differentia and the State’s purpose in framing the law. Right from the beginning, however, there was a dissenting tradition at the Supreme Court that recognised this approach to be excessively formalistic and constrained. In Anwar Ali Sarkar, for example, Vivian Bose J. asked what “substantially equal treatment” might mean in “the democracy of the kind we have proclaimed ourselves to be.” As Bose J. understood at the time, equality could not be divorced from more fundamental ideas about democracy and republicanism.

In the coming years, the Supreme Court made various attempts to break out of the shackles of the classification framework. For example, it evolved the “arbitrariness” standard – which is, only now, being given flesh and bones, in some of the recent judgments of Nariman J. It also held that the State “purpose” would have to be “legitimate” – i.e., it added a third, more substantive, prong to the classification test. The real breakthrough came, however, with the 2018 judgments in Navtej Johar and Joseph Shine. In reading down Section 377 and 499 of the Indian Penal Code, Constitution Benches of the Supreme Court advanced a richer and more substantive vision of equality, that was also in line with global best practices. In short, the Supreme Court shifted the focus from “reasonable classification” to the idea of disadvantage. True equality – as we can intuitively sense – is about identifying disadvantage, about identifying the axes of diadvantage, and then working to remedy them. 

To recognise and identify disadvantage, however, the law requires proxies. It is here that the observations of Indu Malhotra J., for example – as highlighted in a previous post – become important. As a shorthand for identifying disadvantage, constitutional courts all over the world have asked whether legislation picks out people on the bases of “personal characteristics” that they (a) have no control over, (b) are powerless to change, or can only change at great personal cost. Take, for example, the idea of “race”: a person does not choose the race into which they are born, and cannot – obviously – change their race in any meaningful way. Laws that pick out people on the bases of race for differential treatment, therefore, presumptively violate the principle of equality (unless, of course, they are designed to remedy racial disadvantage, through affirmative action programmes, for example). 

It is this richer and more substantive vision of equality and equal treatment that demonstrates the unconstitutionality of the CAA in starkest terms. Each of the three “conditions” under the CAA – country of origin, religion, and date of entry into India – are effectively beyond the control of the individuals the law is targeted at. A person cannot choose which country they were born in, which religious community they were born into, and when persecution forced them to flee into India. But the CAA takes the category of migrants living in India and divides them precisely on these three bases. This is why it goes against the basic tenets of equality. 

Citizenship Laws and Standards of Review 

Another common argument that is invoked by the defenders of the CAA is that issues of citizenship and migration are firmly within the domain of sovereign State powers, and the scope of judicial intervention is highly limited. Courts must – or so the argument goes – defer to the State’s decision regarding who will be granted citizenship, and how. This argument has been repeated so often over the years, and so frequently, that it has by now acquired the immovable weight of a mountain. But the most cursory examination will reveal, however, that this mountain is made of straw. 

Let’s go back to the basics. What was the original justification of judicial review in a democratic society? What justified an unelected Court striking down laws passed by democratically-elected legislatures? The answer, of course, was that the primary role of the Court was that of a counter-majoritarian institution. It existed to check the excesses of majoritarianism, on the understanding that true democracy meant something more than brute majority rule. For this reason, in its famous Carolene Products footnote, the US Supreme Court noted that the role of the Court was particularly important in cases involving “discrete and insular minorities.” Why? Because it were these minorities that faced the greatest difficulties in articulating their interests through the normal channels of (majoritarian) democratic governance. The task of the Court, essentially, was to come to the rescue of those whom the political process – formally or effectively – excluded from equal participation. Thus, for instance, if there is a country where same-sex relations are viewed with opprobrium by a large segment of the population – to the extent that the LGBTQ+ community is permanently excluded from access to political power, as nobody else will ally with them – the Court is justified in subjecting laws targeting that community to stringent scrutiny. 

It should be obvious that migrants – or refugees, as the case may be – fall squarely within this category. As they cannot vote, they are formally excluded from participation in the political process. More than any other vulnerable or marginalised group in the country, they have no say in the laws and policies that will impact them. For this reason, laws that affect citizenship status in the manner that the CAA does, must be subjected to the highest threshold of judicial scrutiny, rather than the lowest. 

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

In a constitutional democracy, no power is absolute. Constitutional authorities are established by – and owe their existence to – the Constitution, and the powers they exercise flow from that same Constitution. In some cases, these powers are limited in express terms. For example, Article 13 of the Constitution expressly limits Parliament’s power of law-making by making it subject to the fundamental rights chapter. 

Article 11 of the Constitution – that deals with citizenship – contains no such express limitation. It gives to Parliament the right to “regulate citizenship by law”, and allows Parliament to make “any” provision with respect to acquisition and termination of citizenship, and “all other matters” relating to citizenship. Commentators have pointed to the width of these words to argue that in matters of citizenship, Parliament has virtually unlimited power (apart from the usual touchstone of the fundamental rights chapter).

What this argument ignores, however, is that express limitations are not the only manner in which constitutional authorities are constrained. As noted in Kesavananda Bharati, there also exist implied limitations that flow from the structure of the Constitution. When – and how – do we discern implied limitations? For the purposes of this post, a short answer will suffice: power under the Constitution to do “x” is limited at the point at which doing “x” will frustrate or destroy another, equally important constitutional principle. This principle was most recently reiterated by the UK Supreme Court in Miller v The Prime Minister, where the British Prime Minister’s power to “prorogue” Parliament was held to be limited by the constitutional principle of representative democracy, according to which it was Parliament’s function to scrutinise and debate important legislation. It was found that the Prime Minister’s prorogation – just before the deadline for Brexit – had the effect of denying Parliament an adequate opportunity to debate the proposed EU Withdrawal Bill, and was therefore unconstitutional. 

What is the implied limitation in the present case? The answer is the constitutional principle of secularism. Secularism – as Kesavananda Bharati held – is a basic feature of the Indian Constitution (independent of its subsequent insertion into the Preamble during Indira Gandhi’s Emergency). The Indian Constitution commits us to being a secular polity. The key issue, then, is that can the conditions of entry into the polity (determined by citizenship law) be such that they frustrate the character of the polity itself. The answer, obviously, is no. In other words, therefore, there is an implied limitation upon the power under Article 11 to grant or withdraw citizenship, that does not permit Parliament to pass any such law that would negate the secular character of the polity – in this case, through the backdoor, by creating conditions of entry where religious claims become determinants of citizenship. To put it in a single sentence: the principle of secularism acts as an implied limitation upon Parliament’s power to legislate on citizenship. Parliament, therefore, has all powers to prescribe conditions of citizenship except and insofar as such conditions frustrate the Constitutional commitment towards preserving a secular polity. 

Conclusion 

Sterile debates over “reasonable classification”, “rational nexus”, and “sovereign powers” can only take us so far. More than that, they serve as conceptual prisons that stop us from thinking more deeply about the idea of equality, the link between equality and democracy, and what the Constitution really asks of us. In recent years, Indian constitutional jurisprudence has begun to liberate itself from that conceptual prison, and has articulated a richer vision of equality and democracy. The CAA challenge now gives the Supreme Court an opportunity to further develop – and evolve – that jurisprudence.

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[Disclaimer: the author is involved in two of the petitions challenging the constitutionality of the CAA.]

A Strange “Notice”

Tags

Equality, Minority Rights

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against 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.]

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In 2005, the then-Government of India commissioned a High-Level Committee too look into the “social, economic, and educational” conditions of Indian Muslims. The Sachar Committee found that the Muslim community was severely deprived upon a wide range of parametres, and recommended a set of affirmative measures that the government could undertake to ameliorate the situation.

In this context, the filing of a petition before the Indian Supreme Court challenging the National Commission for Minorities Act of 1992, and assorted government welfare schemes under that Act, would be best understood as a misguided PIL crusade at best, and a barely-concealed dog-whistle at worst. In particular, the setting out of “legal grounds” in the petition such as “providing special benefit to minority community may allure (sic) a number of persons to embrace another religion and there may be demographic changes” should have – one might have thought – served as an instant red flag to the Court. But the decision of a bench of Nariman and Bhat JJ to issue notice on the petition raises uncomfortable questions about what passes for “legal reasoning” before the Supreme Court these days.

To “issue notice” on a petition means – in its simplest terms – that the Court believes that the government has a case to answer. Bracketing for the purposes of this post the specific challenges to concrete government schemes, what exactly did the two learned judges believe that the government needed to answer for in simply setting up of a Minorities Commission? The NMC Act stipulates that the functions of the Commission shall include “evaluat[ing] the progress of the development of minorities under the Union and States“, “caus[ing] studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal“, “conduct[ing] studies, research and analysis on the issues relating to socio-economic and educational development of minorities“, and so on. Even at the threshold level, where exactly is the constitutional violation in any of this?

Or, to put it more specifically, what constitutional violations does the petition claim? A perusal of the Petition’s “legal grounds” makes it clear that there are broadly two main challenges. The first is a straightforward equality claim, that attacks the law on the basis that it gives certain benefits to minority communities that are not given to the majority community (the petition is quite clear that this is a case of the Hindu community being discriminated against, and predominantly with a view to benefiting Muslims). In doing so, however, the petition seems to be unaware of the basics of Indian equality law, which – at least since the 1970s – has been clear that the constitutional vision under Articles 14 through 16 is that of “substantive equality.” In other words, if Parliament finds that there exist individuals or groups that suffer from substantive disadvantage, Parliament can decide to ameliorate their situation. Such measures would not violate the equality guarantee. Notably, reservations – which need to pass the substantive requirements of Articles 15(4) or 16(4) of the Constitution – are only one of the methods that Parliament can choose to achieve substantive equality. The petition makes the elementary mistake of assuming that the only route open to Parliament is reservations (which, of course, are predicated on identifying social and economic backwardness through a specific procedure). But non-quota ameliorative measures are a standard feature of the Indian legal landscape – literally all social welfare laws and schemes proceed upon that premise.

What, then, is the legal basis for singling out the Minorities Act – and the Commission – as being particularly problematic? The petition makes two claims. First, it states that the Act – and the schemes – do not use economic condition as the basis to identify welfare beneficiaries. That argument – it should immediately be obvious – is bogus. Discrimination occurs along a host of parameters, and takes many different forms. In particular, when the locus of discrimination is group identity, and its form is political or cultural, economic deprivation has very little to do with either the disadvantage suffered, or the prescribed remedy. Secondly, the petition states that it is impermissible to legislate special benefits for religion, as the Constitution specifically bars that. That, however, is akin to saying that there can be no legislation for the benefit of the transgender community, as the Constitution bars discrimination on grounds of “sex.” The point is not the form of the legislation, but simply this: if discrimination occurs around certain axes, or loci (such as gender, or caste, or religion), then the remedy – if it is to be even remotely effective – needs to be framed around those very axes. Substantive equality makes it clear that that is not only permissible, but obligatory in order to achieve the true goal of equal treatment.

To counter this, therefore, the petition would have had to affirmatively show that minorities in India are not disadvantaged – a showing that would be rather difficult given the detailed facts reported by the Sachar Committee. Notably, however, the petition did not even attempt to do that – it only made the naked claim that the very act of setting up a Minorities Commission to look into – and ameliorate – the situation of minorities was unconstitutional. As the above points demonstrate, however, that is not an argument at all.

The second major claim – that occurs repeatedly in the petition – is this: that such schemes will be “detrimental for the Sovereignty and Integrity of India and give rise to separatists and may create a situation for another division of the nation.”

What on earth is going on here? Do Justices Nariman and Bhat believe that the government has to come and justify how scholarship and skill-development schemes for minority children are not, actually, going to “give rise to separatists” and cause a second Partition? Is this what the Supreme Court has reduced itself to – to not only quoting WhatsApp forwards at the beginning of judgments, but actively trafficking in WhatsApp arguments?

It is, of course, a different matter to say that certain specific schemes – such as financial assistance to waqfs – may violate Article 27 of the Constitution, and other provisions. However, the Supreme Court is perfectly capable of issuing a limited notice on challenges that do actually make out a constitutional case at a threshold level. What the Court has done, on the other hand, is (a) by issuing notice on the challenge to the Act as a whole, revealed a warped understanding of equality and discrimination, (b) ignores the fact that petition fails to make out a case even on its own terms, a basic requirement for issuing notice, and (c) winked at some of the lowest forms of minority-baiting and dog-whistling that poisons our public discourse today.

Guest Post: The Wrath of CAAn – on Citizenship, Secularism, and Equality

Tags

article 14, Citizenship, Equality

[This is a guest post by Abhinav Chandrachud.]

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In a paper posted on SSRN, I outline what I consider to be the key arguments for and against the Citizenship (Amendment) Act, 2019 (“CAA”).

Hidden Constitutional Premises:

To begin with, the paper interrogates the premise that the CAA violates the secular fabric of India’s Constitution and argues that there were certain hidden premises in the citizenship provisions of the Constitution that were not very secular at all. Two waves of immigration from West Pakistan to India occurred after 1 March 1947. In the first wave, Hindus and Sikhs came here in large numbers. In the second wave, Muslims who had left India for Pakistan tried to come back home. This created problems in India – the homes of Muslim “evacuees” were being used to rehabilitate Hindu and Sikh “displaced persons”. In July 1948, therefore, a permit system was introduced which made it very difficult for Muslim “evacuees” to return to India if they had property back home. Articles 6-7 of the Constitution indirectly entrenched this preference for Hindu/Sikh “displaced persons” and discriminated against Muslim “evacuees” who wanted to come back home. They did so by making it far easier for those who had come to India prior to 19 July 1948 (i.e., the date of the introduction of the permit system), presumed to be mostly Hindus and Sikhs, to become Indian citizens, while denying Muslim “evacuees” citizenship unless they had obtained an elusive permit for resettlement.

The CAA Is Discriminatory:

That does not mean, however, that the CAA is constitutionally valid. The conditions which existed between 1947-50 (viz., housing shortages, a mass exodus of people, a charged communal environment caused by an influx of refugees) no longer exist today. A persuasive argument can be made that the CAA is discriminatory for five reasons: (i) it leaves out other religious communities in the subject countries (e.g., Jews, atheists, agnostics, Shias, Ahmadiyas); (ii) it ignores other countries in India’s neighborhood (e.g., Sri Lanka, Bhutan, Myanmar); (iii) the cut-off date of 31 December 2014 is arbitrary (though bright line rules tend to be arbitrary, the CAA’s bright line rule undermines its own ostensibly humanitarian objective of protecting those who suffer religious persecution); (iv) it ignores non-religious persecution (e.g., persecution on grounds of race or sexual orientation); (v) the relaxation of the residence requirement from 11 years to 5 years is palpably arbitrary (why should a Parsi fleeing religious persecution from Iran have to reside in India for 11 years to seek citizenship by naturalization, while a Parsi fleeing religious persecution from Afghanistan has to wait only 5 years?)

Underinclusion, or the Chief Justice Patanjali Sastri Defence

However, proponents of the CAA might argue that Article 14 of the Constitution has its limits. In an early case, Chief Justice Patanjali Sastri held that classification brought about by the legislature need not be “scientifically perfect or logically complete”. Building on this doctrine, the Supreme Court has, over the years, held that a pragmatic (not doctrinaire) approach will be adopted in classification cases. The court will frown upon an overinclusive statute but not an underinclusive one (unless there is no fair reason to exclude those left out). The CAA is underinclusive. The state may argue that the categories it excludes are based on degrees of harm and that classification need not be scientifically perfect.

However, this argument is not very persuasive. The classification under the CAA must be tested in the light of the ostensible purpose of the statute. The aim of the statute, according to the Statement of Objects and Reasons, is to protect communities which “faced persecution on grounds of religion” in the subject countries. If that is so, the exclusion of the four categories mentioned above (i.e., other religious minorities in the subject countries; religious minorities in other countries; those who suffer religious persecution after the cut-off date; those who suffer non-religious persecution) lacks an “adequate determining principle” altogether, and therefore is not a simple case of “under-inclusion”; rather, it might fall foul of the “manifest arbitrariness” test.

The CAA is only part of the problem:

However, the CAA is only a part of the problem with Indian citizenship law. Amending the CAA to undo its shortcomings will still not save genuine Indian citizens from being disenfranchised under a National Register of Citizens (NRC). Some 19 lakh people in Assam have been left out of the NRC. Non-Muslims who are excluded from the NRC will only be able to seek refuge under the CAA if they can prove that they came to India before 31 December 2014 from one of the subject countries fleeing (or fearing) religious persecution, which may not be as easy as one might think (despite the “sympathy” provision in Section 8 of the Foreigners Act, 1946).

The paper identifies four problems with Indian citizenship laws: (i) the reverse burden of proof; (ii) the abandonment of citizenship by birth; (iii) the failure to grant a safe harbor to “dreamers”; and (iv) the procedural defects in the Foreigners Tribunals.

The burden of proof in citizenship cases is on the alleged foreigner. Relying on similar laws in countries like the U.S., the Supreme Court of India has upheld this evidentiary rule in Sonowal I, without realizing that the socio-economic condition of the citizens of countries like the U.S. is very different from that in India. An Indian citizen may not, on account of illiteracy, poverty or inadequate infrastructure, be able to prove his citizenship like an American citizen would.

After the 2004 amendment to the Citizenship Act, 1955, the principle of citizenship by birth in India has been abandoned. Now, anyone born in India after 1987 has to prove either than one or both parents are Indian citizens (in some cases, that one parent is not an illegal immigrant). Proving the place of birth of one’s parents is hard for anybody. However, this is especially harsh on some like orphans and transgender persons. How will orphans, who never knew their parents, be able to prove that their parents were Indian citizens? How will transgender persons (some of whom are abandoned at birth) be able to do so?

Indian citizenship law operates harshly on “dreamers” (the term “dreamer” is used in the U.S. to describe the child of an illegal immigrant who arrived illegally in the U.S. at a very young age). A child born in India to illegal immigrants has only known India to be his/her homeland since childhood. That child may now be an adult. Even so, is it not unfair to now deport that person to a country he/she has never known? Similarly, a child who accompanied his/her illegal immigrant parents to India has also known only India to be his/her homeland since childhood and the illegal immigration to India was not his/her fault. Why should such persons, even if they are now adults, be deported overseas?

The judges of Foreigners Tribunals lack security of tenure, without which there cannot be an independent judiciary. They hold office not during “good behaviour” (e.g., for a fixed, non-renewable term in office, or until a retirement age), but for short, renewable terms. Further, though “members” of the tribunal are supposed to have judicial experience, even retired civil servants have recently been accepted as members of these tribunals, contrary to the principles laid down by the Supreme Court. The fact that there are no statutory appeals against these tribunals accentuates these problems. Though a writ remedy is available against their “opinions”, High Courts will not enter into complicated questions of fact while entertaining writs.

Guest Post: The Constitutionality of the Citizenship (Amendment) Act – A Rejoinder

Tags

article 14, classification test, Equality

(This is a guest post by Varun Kannan.)

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I have had the benefit of reading two illuminating pieces written on this blog by Nivedhitha K and Shivam Singhania, on the constitutionality of the Citizenship (Amendment) Act, 2019 (‘CAA’). While Nivedhitha and Shivam arrived at different conclusions with respect to the constitutionality of the CAA, they also expressed different opinions on whether Indu Malhotra J’s concurring opinion in Navtej Johar made an interpretative advance to the traditional classification-based test under Article 14, and whether a religion-based classification is permissible.

In this post, I aim to argue that Section 2 of the CAA fails to satisfy even the traditional classification test of Article 14, and that it can be struck down without any need to resort to the Navtej Johar decision, or the test of ‘manifest arbitrariness’. Another aspect of Section 2 of the CAA which has not received sufficient attention is the cut-off date of 31^st December 2014. I shall also argue that prescription of this cut-off date in the statute is violative of Article 14.

The change in eligibility criteria that has been brought about by the CAA

Before proceeding with the analysis, let us reproduce the exact wording of Section 2 of the CAA, which seeks to amend Section 2(1)(b) of the Citizenship Act, 1955 (‘the parent Act’) by inserting the following proviso:

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

 

The proviso inserted makes three distinct classifications: (i) a religion-based classification i.e. the person must belong to either of the six communities referred to above, and must also be a victim of religious persecution; (ii) a country-based classification i.e the person should be from Afghanistan, Pakistan or Bangladesh, and should have suffered from religious persecution in either of these three counties ; and (iii) a classification based on the cut-off date i.e. whether the illegal immigrant has entered India on or before 31^st December 2014. It is important to note here that the requirement of ‘religious persecution’ has not been mentioned anywhere in the text of the CAA. This requirement has been mentioned only in the Statement of Objects and Reasons of the CAA, and in certain notifications issued by the Ministry of Home Affairs in 2015 and 2016 – that the CAA refers back to – which have exempted the same category of illegal immigrants from the penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. (The relevant 2015 notifications can be found here and here).

It is also instructive to refer to Section 3 and Section 5 of the CAA. Section 3 inserts Section 6B to the parent Act, and inter alia states that upon fulfilment of additional conditions that may be prescribed, individuals referred to in the newly inserted proviso shall be eligible to receive a certificate of naturalisation or registration. Section 5 amends the Third Schedule of the Parent Act to reduce the naturalization requirement from 11 years to 5 years, for individuals who fulfill the criteria prescribed by Section 2. This highlights that the CAA does not automatically grant citizenship to certain communities, and that it only changes the eligibility criteria for obtaining Indian citizenship for individuals from certain religious communities who have come to India from three neighboring countries. This change in the eligibility criteria which makes three distinct classifications referred to above forms the basis on which we shall analyze whether Section 2 of the CAA satisfies the traditional classification-based test of Article 14.

Does Section 2 of the CAA satisfy the traditional classification-based test under Article 14?

Under the traditional classification-based test of Article 14, as laid down in decisions such as Anwar Ali Sarkar a classification created through legislation must satisfy a two-pronged test – (i) it should be founded on an intelligible differentia, which distinguishes those that are grouped together from those that have been excluded; and (ii) the differentia must have a rational nexus with the object that the statute seeks to achieve. In Anwar Ali Sarkar, it was also held that the application of Article 14 cannot be precluded on the basis of whether there was clear evidence of the Legislature’s intention to discriminate, and held that the application of Article 14 is premised on whether discrimination is a necessary consequence of the statute.

The validity of the religion and country-based classification

Keeping this in mind, let us jointly analyze the religion-based and country-based classification created by Section 2 of the CAA. Section 2 changes the eligibility criteria for obtaining citizenship only for six communities (Hindu, Sikh, Buddhist, Jain, Parsi or Christian) who have come to India as illegal immigrants from Afghanistan, Pakistan or Bangladesh, and have been victims of religious persecution. The Statement of Objects and Reasons of the CAA, as mentioned in the Citizenship (Amendment) Bill, 2019 (‘CAB’) inter alia states that – “The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted”.

However, Pakistan, Afghanistan and Bangladesh are not the only neighboring countries that have a specific state religion. There are two other neighboring countries i.e. Bhutan and Sri Lanka, which also have a specific state religion, which is Buddhism. There exists clear evidence that Tamils (who also subscribe to the Hindu faith) from Sri Lanka and Christians from Bhutan have been subjected to religious persecution. In fact, as Arun Janardhanan points out in the Indian Express, around 1 lakh Tamils from Sri Lanka who had fled from the State due to anti-Tamil riots continue to live in India as of today. Section 2 of the CAA fails to include such other persecuted communities.

In fact, while Hindus and Christians from Pakistan, Bangladesh and Afghanistan have been included, the Hindu Tamils from Sri Lanka and Christians from Bhutan have been excluded from the ambit of Section 2. Additionally, Section 2 of the CAA also does not include the Ahmadi community of Pakistan, who constitute a sect of Muslims who have been severely persecuted in Pakistan. The exclusion of three communities mentioned above shows that discrimination in terms of eligibility criteria for citizenship is a necessary consequence of Section 2 of the CAA.

Taking into account these exclusions, the Union Government may refer to the Statement of Objects and Reasons to contend that the classification is applicable only to those countries that have Islam as the specific state religion, and that the communities covered are only those communities in these three countries who do not believe in Islam. This may also be used to justify the exclusion of Ahmadi Muslims, to state that they are persecuted on sectarian grounds, as they do not subscribe to a certain version of Islam in Pakistan. However, such a classification is not based on an ‘intelligible’ differentia for three reasons, which shall be outlined below.

First, the classification is based on the premise that religious persecution takes place only in those neighboring countries that have Islam as the specific state religion. But, as discussed above, religious persecution also takes place in Sri Lanka and Bhutan, which have Buddhism as the State religion, and not Islam. The case of Tamils in Sri Lanka and Christians in Bhutan highlights that persecution takes place even in two other neighboring countries that do not subscribe to Islam.

Second, the classification is based on the presumption that only communities who are non-believers in the state religion are persecuted, and that only minority communities are persecuted in an Islamic country.  The persecution of Ahmadi Muslims in Pakistan for not subscribing to a certain version of Islam rebuts this presumption. As Ahmadis are persecuted for not subscribing to a certain version of Islam, their persecution does have a ‘religious’ angle to it. This renders the distinction between ‘religious’ and ‘sectarian’ persecution a matter of mere semantics, which cannot be used to argue that the classification is based on an intelligible differentia. In any case, the distinction between religious and sectarian persecution is applicable only to Ahmadis, and is inapplicable to the exclusion of Sri Lankan Tamils and Bhutanese Christians.

Third, the religion and country-based classification takes into account only religion-based persecution, and does not take into account certain other forms of persecutions, such as persecution that is political in nature. For instance, Tibetans are persecuted in China for political reasons, and even they stand excluded from the protective umbrella of the CAA. For these reasons, the religion and country-based classification is not just and sound, and cannot be said to be based on an ‘intelligible’ differentia.

Furthermore, instead of viewing this classification as a case of ‘under-inclusion’ by the Legislature, it is better understood as one that leads to discrimination as a necessary consequence. This is a case of unequal treatment of individual human beings within the territory of India, who are placed in a similar situation, and is not akin to other classic cases of ‘under-inclusion’ such as Chiranjit Lal Choudhary, where in a government take-over case, it was argued that other similarly placed companies were ‘under-included’ by the Legislature. The CAA accordingly leads to discrimination as a ‘necessary consequence’, as certain communities already in India as “illegal immigrants” from three neighboring countries are granted a different eligibility criteria for citizenship, to the exclusion of others (such as Sri Lankan Tamils) who are similarly placed. This also goes against the basic tenet of Article 14, which is that ‘equals should be treated equally’.

As the classification is not based on an intelligible differentia, it fails to satisfy the classification test of Article 14. However, for the sake of argument, let us assume that the Supreme Court finds an intelligible differentia, and analyze whether the second prong of the test is satisfied i.e. whether the differentia has a rational nexus with the purpose that the statute seeks to achieve. In decisions such as Subramanian Swamy v. CBI, the Supreme Court has added another prong to the rational nexus requirement, by holding that the purpose that the statute seeks to achieve should itself be legitimate. It was also held (in the context of Section 6-A of the Delhi Police Special Powers Act) that if the object of the statute is itself discriminatory, then that discrimination cannot be justified on the ground that there is a rational nexus with the object that the statute seeks to achieve.

As discussed above, the Union Government may present the object of Section 2 of the CAA narrowly, by contending that it seeks to provide benefit to persons belonging to non-Islamic communities, in the three neighboring countries that have Islam as the state religion. The Union Government may contend that the CAA changes the eligibility criteria for only those communities who have been victims of religious persecution, for belonging to a community that does not believe in the state religion i.e. Islam. While a rational nexus may be established with this object, I would submit that for the same reasons discussed above, the object of Section 2 of the CAA is in itself discriminatory. The reasons mentioned above can be summarized as follows:

i.         The religious persecution of Sri Lankan Tamils and Bhutanese Christians shows that religious persecution exists even in those countries that have a state religion apart from Islam, and that religious persecution is not limited solely to Islamic nations;

ii.         The persecution of Ahmadi Muslims in Pakistan highlights that even communities that subscribe to the state religion can be persecuted. As Ahmadi Muslims are persecuted for not subscribing to a certain version of Islam, their persecution also has a ‘religious’ angle, and cannot be categorized as persecution that is merely ‘sectarian’ in nature;

iii.         Persecution of communities is not restricted solely to religious grounds, as evidenced through the persecution of Tibetans in China, which is done on political grounds. The object of the statute hence includes one form of persecution to the exclusion of other forms of persecution which are equally significant.

All communities mentioned above have been excluded from the ambit of the CAA. Hence, the object of the religion and country-based classification created by Section 2 of the CAA is in itself discriminatory. Applying the test laid down in Subramanian Swamy, such discrimination cannot be justified on the ground that it has a rational nexus with the object that the statute seeks to achieve.

We may also make reference here to the Supreme Court decision in Deepak Sibal v. Punjab University. Here, it was held (in context of admission to educational institutions) that while the Legislature is entitled to prescribe the source from which admission to an educational institution is to be made, such a source (which selects the beneficiaries of the legislation) is also a ‘classification’. As it is a ‘classification’, it must also satisfy the traditional Article 14 test. This decision can also be applied to the classifications created by the CAA. The Union Government cannot successfully argue that the requirements of Article 14 are satisfied by defining the purpose of the CAA in terms of the selection of the beneficiaries i.e. in terms of illegal immigrants of non-Islamic communities, who have come to India from three neighboring Islamic nations. To illustrate further, a law which confers red-haired businessmen with a tax exemption cannot be defended on the ground that the object of the law is in itself to provide a benefit to solely red-haired individuals, as such an object would by itself be discriminatory.

For the reasons mentioned above, the religion and country-based classifications fail to satisfy either of the requirements of the traditional classification test.

The validity of the cut-off date-based classification

Section 2 of the CAA also prescribes that in order to take benefit of the amendment, the illegal immigrant should have entered into on or before 31^st December 2014, which is the cut-off date. This creates a third tier of classification, between illegal immigrants (who belong to either of the six communities and have come to India from Pakistan, Afghanistan and Bangladesh) who have entered India before 31^st December 2014, and those who have entered India after the cut-off date. This cut-off date was not present in the 2016 version of the CAB, and was inserted only in the 2019 version of the Bill, which is now the CAA.

As Arunabh Saikia argues, this cut-off date may have been put in place to assuage concerns of groups from the North-east regions, who expressed an apprehension that the absence of a cut-off date could lead to an endless influx of immigrants. The Union Government may also justify the cut-off date by contending that the CAA is a logical continuation of the 2015 and 2016 notifications referred to above, which exempted the same category of illegal immigrants referred to in the CAA from the penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946. (For ready reference, the relevant 2015 notifications are available here and here). These notifications also prescribed the same cut-off date of 31^st December 2014.

This however cannot be a ground to show either an intelligible differentia or a rational nexus, as the Notifications can easily be amended through an executive order and brought in conformity with the date of coming into force of the CAA. Furthermore, there can be no intelligible distinction based on whether the same category of illegal immigrants entered India before or after 31^st December 2014. Such a distinction is not just and sound, as there exists no parameter to justify the exclusion of the same category of illegal immigrants, solely on the ground that they entered India after the end of a particular date.

If a person has entered India after being a victim of religious persecution, he should technically be eligible for protection irrespective of the date on which he entered India. If the CAA would have prescribed that illegal immigrants who entered India on or before the date of commencement of the CAA would fall within its protective umbrella, then such a cut-off date would have some nexus with the goal of preventing a large scale influx of illegal immigrants. But, creating a classification through a cut-off date that is almost five years prior to the commencement of the CAA is not founded on any intelligible differentia. Such a differentia also does not have any rational nexus with the purported objective of providing protection to communities who have suffered from persecution in Islamic nations.

Conclusion

For the reasons mentioned above, all three classifications created by Section 2 of the CAA fail to satisfy the traditional test of Article 14. Hence, even without resorting to the subjective and more controversial test of ‘manifest arbitrariness’ or the Navtej Johar decision, Section 2 of the CAA, can be declared as unconstitutional.

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

Tags

article 14, Citizenship, citizenship amendment act, discrimination, Equality

[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.]

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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 minorities. However, 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.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

Tags

Citizenship, Equality, freedom of religion, non-discrimination

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]

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The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “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”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “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.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

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 minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

ICLP Round Table: The Equality Bill 2019 – A Response

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Equality, equality bill, non-discrimination

(In this concluding post in the ICLP Round Table on CLPR’s Draft Equality Bill of 2019, Jayna Kothari responds to the previous posts. Read the discussion here, here, here, and here.)

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The Equality Bill 2019 is in its early stages of the draft and this conversation with Gautam Bhatia, Sandra Fredman and Malavika Prasad is extremely useful and constructive. These comments raise several important concerns and would be helpful in the improvement of the Bill.

Before responding to the some of the comments to the Bill, I would like to give an overview the background of the Bill. The Bill was conceptualized to take forward the equality guarantees that recent Supreme Court decisions protected, such as the right to recognition of sexual orientation and gender identity. It was also conceptualized because the non-discrimination legislations that we currently have in India are not adequate and do not provide enough remedial measures to address discrimination.

Equality bills have been drafted in the past, especially the effort done by Tarunabh Khaitan in drafting the Anti-Discrimination and Equality Bill 2017. The Equality Bill has also examined in great detail the UK Equality Act 2010 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and has tried to learn and improve on these legislations.

Two of the most difficult tasks were to draft the sections on protected characteristics and how to define ‘discrimination’. In addition to these tasks there have been substantive responses to concerns on contract and informal workers being left out of the sections on discrimination in employment. I will try and address these concerns below:

Protected characteristics: One of the most challenging concerns has been to decide which protected characteristics to include in the Bill and which to not include. The inclusion of ‘socio-economic status’ was a particularly complex characteristic to include and Danieli Evans Peterman’s article on the need for protection on the basis of socio-economic status in discrimination statutes is particularly instructive. Socio-economic status has been defined in the Bill as a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications. Therefore, the definition would imply that it would be only those who are disadvantaged by socio-economic status, and would not be available as a ground for those of a higher socio-economic status to raise the claim of discrimination. However, Sandra Fredman’s suggestion of using the term “socio-economic disadvantage” instead might work better and would make it clear that it is only meant for these who are disadvantaged by socio-economic status. Such a similar concern had been raised in the consultations that CLPR has had on the Bill with stakeholders and this has been raised not only in the context of the protected characteristic of ‘socio-economic status’ but also interestingly in the case of caste and the concern that only persons disadvantaged by a lower caste should be able to use caste as a ground for discrimination. The protected characteristic should not be available to persons of a higher caste to claim discrimination. Hence these concerns would need to be kept in mind while defining all protected characteristics to some extent.

Definition of discrimination:  “Discrimination” has been defined in the Bill to mean any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage, denies reasonable accommodation, promotes negative stereotypes, withholds benefits, opportunities and advantages from any person on one or more protected characteristics. Further, in Chapter II on prohibited conduct, discrimination has been expanded to include not only direct and indirect discrimination, which has been included in previous equality law drafts, but also to include structural discrimination, hate speech, segregation and boycott, harassment and victimization and lynching. Our attempt was to build on Sandra Fredman’s definition of substantive or transformative equality and its four dimensional framework, to include many more facets. Disability jurisprudence shows us how denial of reasonable accommodation amounts to discrimination. Caste related experiences of discrimination manifest in segregation, exclusion, boycott and lynching and gender based forms of discrimination often manifest in harassment and victimization and all of these forms often results in structural discrimination at a larger level. The Bill has attempted to include all these experiences to strengthen the understanding and definition of discrimination. The inclusion of hate speech as a form of discrimination is particularly challenging and we are still grappling with an appropriate definition which does not curtail the freedom of speech and expression.

Employment and Workplace Discrimination: The comments from both Sandra Fredman and Malavika on the inclusion of informal workers are extremely useful and the Bill needs to address this concern.  The definition of “employer” in the Bill was meant to be wide enough to include not only employers in the formal sector but also those in charge of informal employment or unorganized work sector such as domestic work. The suggestion to specifically include contract workers and employers who engage contract or temporary workers could be made more clear and specific. It is also true the definitions in the Bill might not include self-employed workers such as Uber drivers or other such persons engaged in app based employment and who are discriminated against by clients or customers. The Bill needs to provide for such inclusion within its employment related guarantees. The challenge of including people engaged in other forms of livelihood such as hawkers, vendors, artisans etc. can also be addressed perhaps by expanding the definitions of places of public accommodation and to include discrimination faced by vendors from customers or the State authorities.

The comments received on the Equality Bill have been extremely important and we hope that these conversations continue. We welcome inputs and feedback on the Equality Bill draft and invite more readers to engage with the text. All of this will help in not only improving the draft but also in pushing for the Bill to become law soon.

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(The writer is a senior advocate.)

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

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discrimination, Equality, equality bill, equality courts

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

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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.

ICLP Round Table: The Equality Bill 2019 – Comparative Perspectives

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comparative constitutional law, Equality

(This is a guest essay, authored by Professor Sandra Fredman, who is Rhodes Professor of Law at the University of Oxford. It is the third essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first two essays are available here and here).

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India is unusual in that the provisions guaranteeing equality in the Constitution have not yet been supplemented by comprehensive anti-discrimination legislation comparable to that in other jurisdictions, such as the US, South Africa or the UK. Anti-discrimination legislation plays an important role in giving specific content to constitutional guarantees. It can also bind individuals and corporations, thus extending the reach of the right to equality beyond the State into key sites of discrimination, such as employment, housing, education, healthcare and goods and services available to the public.  The proposed Equality Bill drafted by Jayna Kothari and her colleagues at the Centre for Law and Policy Research is thus very much to be welcomed and she and her team deserve to be congratulated on the quality and reach of the proposal. This post takes a comparative perspective on the Bill, while of course being sensitive to the very different context in which the new legislation will function.

There are many aspects of the Bill that demonstrate positive advances on relevant comparators, such as the UK Equality Act 2010 (EA) and EU legislation. This is particularly so for the definition of direct discrimination. Direct discrimination has traditionally been defined as occurring when a person is treated less favourably than another due to a protected characteristic. The need for a similarly situated comparator, however, has raised complex issues both in principle, because it requires conformity with a dominant norm as a gateway to equal treatment, and in practice, where the choice of comparator can be contested. This has most saliently occurred in relation to pregnancy, with the sad spectacle of tribunals and courts in earlier decades refusing to accord pregnant women the same treatment as men because there is no appropriate male comparator. The EA addressed this problem by replacing the requirement for a comparator with the simple need for detrimental treatment. But this only applies in relation to pregnancy (and disability in limited circumstances), The Indian Bill takes a step further and gives both possibilities in the alternative, available for all protected characteristics, not just pregnancy.

The Bill is also important in that it aims to address structural discrimination in various forms. While the EA addresses such discrimination solely through indirect discrimination, which focuses on the effects of apparently neutral practices, provisions or criteria, the Bill also includes a provision expressly defining ‘systemic or structural discrimination,’ defined as hidden or overt patterns of institutional behaviour, cultural traditions and social norms that discrimination against individuals with protected characteristics. The Bill’s definition of indirect discrimination, is however, interesting in that it does not include the usual justification defence for respondents, permitting the latter to demonstrate that the provision is proportionate to a legitimate aim (such as a requirement for a relevant qualification which might be necessary for a job even though it excludes a disproportionate number of people with a protected characteristic). 

The Bill is impressive too in the wide range of characteristics which it classifies as protected against discrimination. Although many of the listed characteristic can be found in international or regional sources, the Bill contains several important additions, including linguistic identity, migration, refugee status, occupation and food preference. The Bill also transcends the straight-jacket of the Constitutional equality provisions, which only list a set number of protected characteristics. Instead, its list is non-exhaustive, including a provision by which analogous grounds can be included if they fit the principles in the Bill. In addition, the Bill makes express provision for addressing intersectional discrimination. Notably, the Bill includes socio-economic status as a protected characteristic. While this is a welcome move, this formulation runs the risk of protecting the stronger as well as the weaker sections of society. This might open the way to claims by advantaged persons that provisions such as higher taxes for wealthier persons might be challenged as discriminatory on grounds of socio-economic status. The drafters might instead want to use an expressly asymmetric term such as socio-economic disadvantage.

One aspect of the  Bill which might also need further attention concerns the scope of the protection for workers. Given that over 80% of employed persons in India earn their living in the informal sector in India,  dwarfing the formal sector in magnitude, a key initial question is the extent to which non-standard workers are protected. This is a highly challenging issue, and there are few modern positive precedents for its resolution. In particular, most labour law systems confine eligibility for employment protection to workers working under a contract of employment, excluding self-employed, non-standard workers. Discrimination law in the UK extends to some self-employed workers, provided they work under a contract to provide a personal service; but this too has opened up a large number of loopholes for those attempting to sidestep their obligations.

The Bill certainly takes important steps towards inclusion of non-standard workers, such as including employment agencies in the prohibition on discrimination, and mentioning domestic workers in the definition of employer. However, the way in which ‘employee’ is defined might still exclude some of the most vulnerable workers outside of the formal sector. ‘Employee’ is defined as any person ‘employed on wages in any establishment, factory, company or shop.’ An Uber driver who is discriminated against because he is Muslim, a woman agricultural worker  who is sexually harassed, or an own-account worker who is paid less because of race, caste or migration status, might find it difficult to bring themselves within this definition. One way forward is to provide separate protection for self-employed workers who are discriminated against by clients or customers, similar to the protection for consumers or users of public accommodations. Another is to replace the use of ‘wages’ with earnings, and give less emphasis to the workplace as the site of work.  Also of importance is to bring the provisions for equal pay for work of equal value in the Equal Remuneration Act into closer alliance with the Bill.

The Bill is also noteworthy in its inclusion of proactive duties, closely resembling the  ‘fourth generation’ equality duties found in the EA. Such duties are important in their recognition that individual complaints of discrimination will never be sufficient to address the structural causes of discrimination. Proactive duties on the part of the State are crucial in discerning and changing such systemic patterns, as well as taking the burden off individual complainants. The Public Sector Equality Duty in the Bill tracks closely onto its UK equivalent by requiring all appropriate authorities to ‘have due regard to the need to’ eliminate prohibited conduct under the Act, remove or minimize disadvantage, and encourage participation. It goes somewhat further than the EA in that due regard should also be had to taking steps to meet the need of persons with protected characteristics. However, given the extent to which the ‘due regard’ standard under the EA has become little more than a ‘tick-box’ procedure, the drafters might consider strengthening the requirement. For example, rather than requiring authorities to ‘have due regard’ to the need to eliminate prohibited conduct, the drafters might consider requiring authorities actually to eliminate such conduct, which is prohibited in any event. Similarly, rather than imposing a duty to have due regard to the need to take steps, they  might think of imposing a duty to actually take the steps.  Nor would this be pushing the boundaries too far, given that the previous clause requires the State to take measures to promote equality.

Even more welcome would be the inclusion of a duty to have regard to the need to reduce economic inequalities. A similar duty was inserted into section of the EA, which required public authorities, when exercising strategic functions, to have regard to the desirability of reducing socio-economic inequalities. Despite being a very mild obligation, this provision has never been brought into effect, despite remaining on the statute book, so that there is no experience of its workings. For the Indian Bill, it would not be too large a step to include such a duty, given the emphasis in the preamble on eradication of socio-economic inequalities, and the inclusion of socio-economic status in the list of protected grounds. Consideration might even be given to strengthening the obligation.

All in all, this is a very welcome intervention, and it is to be hoped that it will soon find its way onto the statute books.