Guest Post: The Case against the 103rd Amendment

Tags

basic structure, caste, Equality, reservations

(This is a guest post by Malavika Prasad. A prior version appeared here.)

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The 103rd Constitutional Amendment permits the State to:

1. make special provisions (Article 15(6)),
2. make special provisions, including reservations in admissions to educational institutions, in addition to the existing reservations to the extent of 10%, and
3. make provision for reservations in appointments or posts, in addition to the existing reservations to the extent of 10% for the advancement of “any economically weaker sections of citizens other than the classes mentioned” in Articles 15(4) and (5) and Article 16(4).

In this piece, I respond to Gautam Bhatia and Anup Surendranath, and make the basic structure argument against the 10% reservation for this class of beneficiaries. I do not present any analysis on the constitutionality of other “special provisions” such as scholarships, fee waivers, etc.

Reservations are meant to ensure that the ideal of “equal opportunity” is not a mirage for persons subordinated by social structures such as caste, gender, race, etc. This is why Article 16(4) is considered to be an emphatic restatement of Article 16(1)’s principle of equality of opportunity (see NM Thomas, Indira Sawhney and this paper examining the relationship between the two articles). Prior to the 103rd Amendment, in an ideal India in which quality education is available in public schools, a beneficiary of reservation under Articles 15(4) and (5) and Article 16(4) (let’s call them “protected groups”), from the parent’s generation ought to attain upward mobility of the degree and kind that enables their children or grandchildren to compete for the unreserved, open seats. So long as there is a steady stream of first generation learners from protected groups attending school each year with the benefit of reservation, the numbers of second and later generation learners from protected groups in the total pool of students (comprising reserved and unreserved seats) ought to grow. Growing numbers of later generation learners from these protected groups, in even unreserved seats, would be testimony to the success of a reservation program: the parental generation, being beneficiaries of reservation, gained a boost that enabled the later generations compete without the need for a similar boost. In other words, the benefit of reservation to earlier generation learners enables later generations of learners to work their way up, in educational institutions and the workforce, and out of the conditions of backwardness.

This logic is, of course, an oversimplification resorted to here only for the purpose of the argument. In reality, the conditions of backwardness that characterize OBCs are qualitatively different than those for SCs/STs. The key difference between the two is of social stigma: persons from SC communities, for instance, regardless of their attainments in education and employment, continue to face the stigma of untouchability by other members of society, a reality steadfastly recognised by the Supreme Court in 1992 Indira Sawhney, albeit with a recent and problematic departure in Jarnail Singh. A study of the castes and tribal groups classified as SC/ST, and the determinants for doing so is available in Chapter 5 of Marc Galanter’s Competing Inequalities.

The Rights of Later-Generation SC/ST/OBC Learners

After Articles 15(6) and 16(6), the number of second and later generation learners from protected groups who take up unreserved seats might diminish, notwithstanding the growing numbers of them who are capable of competing in the open channel. This would not have happened but for the Amendment, because the new set of beneficiaries under Articles 15(6) and 16(6) are to be “other” than those from the protected groups contemplated in Article 15(4) and (5) and 16(4). In other words, the new class of beneficiaries is defined in opposition to the old classes of beneficiaries. So when the State sets about following the Amendment’s instructions to name the new class of beneficiaries, it must first analyse what counts as “economic disadvantage” and then produce “indicators”. Then, it must test which persons qualify against these indicators of economic disadvantage. In doing so, the State must consider only persons who are not from the protected groups of SCs/STs or OBCs. Thus, to the extent of 10%, educationally well-to-do persons can be beneficiaries of reservations in educational institutions under Article 15(6). Likewise, classes of citizens who are adequately represented in the State services can be beneficiaries of reservations in the State services under Article 16(6). The Amendment thus cements the claim of persons from upper castes who are possibly educationally well-to-do and adequately represented in State services, on 10% of seats or posts.  

Furthermore, the new class of beneficiaries is left to the State to notify from time to time, “on the basis of family income and other indicators of economic disadvantage.” What might count as “indicators of economic disadvantage” is unclear. Since “indicators of economic disadvantage” are to be understood in conjunction with “family income”, presumably, the indicators of disadvantage will consider disadvantage that afflicts families, and thus members of families i.e. individuals. Thus, the Amendment will cement the claim of persons from educationally well-to-do and otherwise well-represented upper-castes, based solely on characteristics that are individual to them.

This damages the basic structure of the Constitution of India. To be clear, the argument is not that the Amendment excludes second and later generation learners of SC/ST/OBCs capable of accessing unreserved seats, from accessing 10% unreserved seats. This by itself is not a problem for the basic structure; it is thus no response to argue that the SC/ST/OBCs already have 50% reserved seats and thus cannot remedy the loss of potential access to unreserved seats. The argument is that the exclusion of these later generation learners, due to an a priori reservation of 10% seats for persons from the upper-castes, is a violation of the basic structure doctrine.

The Logic of Group Representation

This argument hinges on the premise that reservations, as a special provision are meant to achieve representation of communities so far either unrepresented or inadequately represented in the State. That reservations are meant to guarantee opportunity for representation was the premise of even the debates in the Constituent Assembly on Article 16 (Draft Article 10) for instance here, here, here, here and here.

If we can agree that reservations are meant to remedy inadequate representation, then I make two claims:

First: reservations in particular, unlike other special provisions, are only a fruitful remedy to persons subordinated by a structural barrier such as caste, race and gender. This follows from the purpose of reservations being to enhance the representation of those groups that are inadequately represented. Inadequate representation of certain groups is a consequence of members from those groups being held back, throughout their lives, from accessing opportunities on par with the rest of society, by other members of society. For instance, gatekeepers to social spaces such as schools, workplaces, shops etc. continue to practice untouchability, or create other onerous entry barriers for persons from SC/STs. Such continual treatment as “lesser” than others could also psychological harms and intergenerational trauma in persons from SC/STs. One’s birth into castes that are SC/ST then becomes the cause for further and cumulative disadvantage that is not only social and educational but also economic. Contrast this with persons from upper-castes who are setback by “economic disadvantage”. Such disadvantage is not caused by being systematically treated discriminatorily by other members of society. Even the framers of the 1st Constitutional Amendment which introduced Article 15(4) were conscious of the nature of economic disadvantage, as Galanter notes:

In spite of [Prime Minister Nehru’s] reluctance to talk about caste, it is clear that what was intended were not measures to erase all inequalities, but specifically those which were associated with traditional social structure. “[W]e want to put an end to . . . all those infinite divisions that have grown up in our social life . . . we may call them by any name you like, the caste system or religious divisions, etc. There are of course economic divisions but we realize them and we try to deal with them. . . . But in the structure that has grown up . . . with its vast number of fissures or divisions.”

Galanter also notes that Nehru was unwilling to accept any of KT Shah’s amendments that sought to remedy only “economic backwardness” of individuals, as opposed to social and educational backwardness of “classes”:

He then observed: “But if I added ‘economically’ I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. ‘Socially’ is a much wider word including many things and certainly including economically” (id., 9830).

Since “economic disadvantage” as contemplated in the 103rd Amendment is unlike the structural disadvantage of caste, in that it varies from individual to individual and does not result from membership in a subordinated group, there is nothing to be gained from granting reservations to persons suffering economic disadvantage. This is because the barriers facing upper-caste persons with economic disadvantage are not barriers of representation. One might respond that reservations nonetheless are sought by groups that do not seek to be better represented, because they are an immediate and tangible benefit unlike other special provisions. While that may be true of the demand for reservation by upper-castes, it is not constitutional to accede to such a demand – which is the substance of my next claim.

Equality and the Basic Structure

Second, if reservations are to remedy the effects of caste-subordination by providing representation, then enhancing and cementing the representation of upper-castes damages democracy, which is a part of the basic structure of the Constitution of India.  This aphorism is oft-invoked in cases concerned with questions of what comprises a representative democracy (“free and fair elections”, “judicial review of governor’s powers”) and how a representative democracy can be realized (mechanisms like “one-person-one-vote”, or “secret ballot”). For instance, Justices Khanna and Mathew held, in Indira Gandhi v. Raj Narain, that the constitutional amendment immunizing the election of the Prime Minister and Speaker from judicial challenge damages the principle of “free and fair elections”, a central principle of democracy. RC Poudyal v. Union held that a marginal distortion of the “one-person-one-vote” principle does not damage representative democracy. Kuldip Nayyar held that doing away with the requirement of domicile in the State of candidacy and secret ballot in Rajya Sabha elections would not damage representative democracy. It is the what – the concept in Bhatia’s and originally Dworkin’s words – and not the how – the “conception” – that courts recognise as part of the basic structure. In all these cases, Courts appear to repeatedly uphold elements of the structure and form of democratic government as part of the basic structure.

The form and structure of democratic government cannot be an end in itself, unless all citizens are a priori free and equal to each other. Indian society however possesses deep-seated inequality perpetuated by structures such as caste, and is thus fundamentally undemocratic. Democratic government was chosen as the means to achieve substantive democracy. Dr. Ambedkar reckoned with this reality as he defended the choice to place the working of the administrative services in the Constitution:

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

 

If elements of the structure of democratic government (such as “free and fair elections”) are part of the basic structure of the Constitution, then the ends sought to be realized through the means of democratic government must also be part of the basic structure. In other words, the why of democracy must be equally central to the basic structure of the Indian Constitution as the how and the what of democracy.

The why of our democracy, as Ambedkar stated, is to realize equality of all persons, despite our deep social stratifications. For substantive democracy, remedying subordination by virtue of caste-membership is indispensable. The 10% reservation for upper-castes undoes this remedy, by cementing the representation of upper-caste persons based on individual criteria such as economic disadvantage. In other words, the 103rd Amendment cements the power of already well-represented groups to the detriment of protected groups. This is a fundamentally undemocratic outcome, taking us back to the status quo in 1950 which we sought to consciously progress from in promulgating the Constitution of India. Thus, the 10% reservation consciously damages substantive democracy which is a core aspect and basic feature of the Constitution of India.

Conclusion

In lieu of a conclusion, it bears mentioning that for my argument, it is irrelevant whether the 10% quota is provided over and above the 50% reservation, or within the 50% reservation such that SC/ST/OBCs are entitled only to 40%. Likewise, nothing turns on breaching the 50% rule either – which can easily be breached by a constitutional amendment so long as special provisions are seen as an emphatic restatement of the principle of equal opportunity. Instead, my argument is merely that cementing the representation of persons from upper-castes damages substantive democracy – upper castes being adequately represented in all social spaces, educational institutions, and in the services of the State. The remedy for upper-caste individuals set back by economic disadvantage lies elsewhere, but not in reservations.

Is the 103rd Amendment Unconstitutional?

Tags

basic structure, Equality, reservations

Yesterday, the President assented to the Constitution (One Hundred and Third Amendment) Act, which introduces reservations based on economic criteria, into the Constitution. The swift passage of this amendment through both houses of Parliament (from start to finish, it took 48 hours) has raised serious questions about democratic accountability. The Amendment itself has been castigated (repeatedly) as an election gimmick, and contrary to the very purpose of providing reservations. However, this is now history: the Amendment is here, awaiting only to be notified by the Government. And so, to the only relevant legal question that remains: is the 103rd Amendment unconstitutional?

The Basic Structure

 

It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges are always threatening to drop upon the neck of democracy, the Supreme Court has almost never used basic structure to invalidate constitutional amendments. The high-profile striking down of the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has been used on an average of once in a decade. And in the seventy-four constitutional amendments after Kesavananda, only five have been struck down on substantive basic structure grounds (a strike rate of around 7%).

It’s also interesting to note (by way of example) what the Supreme Court has allowed to stand in the teeth of a basic structure challenge: in Nagaraj, a whole-scale restructuring of Article 16 that would effectively breach the 50% Rule (more on that in a moment), and in Poudyal, a departure from the principle of one-person-one-vote (more on that shortly, as well). Even when the Court has invoked basic structure, it has elected to use the scalpel rather than the bludgeon: in Raj Narain and in Minerva Mills – two of the starkest cases of constitutional abuse in our history, both by Indira Gandhi – the Court only snipped away a clause (granting immunity to Indira Gandhi from electoral malpractice) and a phrase (effectively getting rid of the fundamental rights chapter altogether) respectively, while upholding the rest of the (abusive) Amendments under challenge.

This is the case because the Court – conscious of the legitimacy issues with striking down a constitutional amendment – has been very careful about the language that it uses. Kesavananda Bharati didn’t say “modify”, “tinker”, or “change” – it said that a constitutional amendment cannot “damage or destroy” the basic structure. Nagaraj refined this by introducing the “width and identity” tests, making it clear that a basic structure challenge would have to demonstrate that the constitutional amendment makes the Constitution virtually unrecognisable.

The Amendment 

Within this context, let us briefly examine the 103rd Amendment. The Amendment introduces Articles 15(6) and 16(6) into the Constitution. 15(6) allows for reservations for “economically weaker sections of citizens” other than the classes mentioned in Articles 15(4) and 15(5) (i.e. effectively, other than the SCs/STs/OBCs). Article 16(6) does the same for public employment. The quantum of reservation is fixed at 10% over and above the existing reservation for SCs/STs/OBCs. An Explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

I want to focus on three features that (in my view) can form the basis for a potentially credible basic structure challenge. The first is the “50% question.” The second is (what seems to be) the use of family income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

The Challenge 

A. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The roots of this stipulation lie in M.R. Balaji v State of Mysore, where the Supreme Court held that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of opportunity), anything more than 50% would imply that the exception was swallowing up the rule. In Indra Sawhney v Union of India, this judicial rule was affirmed once again, and a governmental notification providing for 10% reservations on the basis of economic disadvantage was struck down. However, neither Balaji nor Sawhney were concerned with the basic structure: they were considering a law and subordinate legislation, respectively.

So, is the 50% rule a part of the basic structure? In Nagaraj, the Court suggested that it is, when it noted that:

” … the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948. Ambedkar observed that the purpose of Article 16 was to balance two competing principles – (formal) equality of opportunity, and compensation for inadequate representation in public employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and 16(4)), and one example that Ambedkar specifically took to indicate what might upset this balance was a potential situation in which the quantum of reservation reached 70%.

There is, therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as its drafters intended (and as the Supreme Court later affirmed). However, it does not follow from that that an amendment to Article 16 that changes this scheme would be a basic structure violation. This is for two reasons. The first is that the basic structure is not reducible to a particular, concrete articulation of values, internal to a specific constitutional provision. It is open to Parliament – acting in its constituent capacity – to depart from the constitutional settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the only reasonable interpretation available. In N.M. Thomas, for example, a majority of four judges out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words, 16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as that was predicated on 16(4) being an exception to 16(1).

I have defended this interpretation elsewhere, but here, I am not concerned with whether it is right or wrong. The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-judge bench of the Court, and which has never – technically – been overruled. Consequently, it is certainly open to Parliament to take that view, and amend Article 16 to reflect that.

Lastly – and keeping everything else aside – I am not even sure that on its terms, the 103rd Amendment commits Parliament to increasing the quantum of reservation above 50%. The Amendment only provides reservation to the extent of 10%; however, existing Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at 50% – that has been achieved through legislation. Consequently, how can a basic structure challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised at all – must come in when Parliament enacts a law to give effect to the Amendment.

B. Individuals and Groups

There is, I think, a more persuasive basic structure argument against the Amendment. There is one feature that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the “family income” as the primary determinant of economic disadvantage, the Amendment advances a philosophy of reservation that focuses on remedying individual disadvantage (by taking the family as the unit for determining who is disadvantaged). At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles 14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the historical fact that in India, group membership has been the primary basis of institutional and structural disadvantage. One’s access to opportunity and chances of social and economic mobility have been mediated by one’s group identity – and primary, that identity has been structured around caste. The logic of reservation in India – and this dates back to pre-Independence times – has, consequently, always been that while the right to equality is an individual right, the only method of achieving substantive equality at an individual level is to take into account the disadvantages and barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd Amendment must fail the basic structure test is because it essentially contains internally contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

While I agree that the 103rd Amendment makes a logical mess of the scheme of Equality Code, when it comes to a basic structure challenge, however, I find myself running up against the same difficulty that was faced in assessing the 50% challenge. And that is that the argument accords to the basic structure a level of specificity that it does not have, and one that the Court has consistently refused to give it. It is true that economic reservation goes against the grain of how social justice and equality have always been conceptualised in India, at least in constitutional terms. It is true that it sets up a contradiction (in terms of legal logic) between the SC/ST/OBC reservation provisions, and economic reservation. However, once again – the basic structure does not bind Parliament to any particular conception of equality and social justice. The basic structure does not require that Parliament follow the same logic, even within the same constitutional provision. The basic structure does not mandate clean, coherent, and logical drafting. All it requires is that a basic feature – in this case, “equality” – not be “damaged or destroyed.” And for me, it is difficult to see how economic reservation “damages or destroys” the concept of equality, because as long as there exists a reasonable understanding of equality that can accommodate economic reservation – and surely there does – it will be immune from a basic structure challenge.

The distinction between the level of the “concept” (which is the level at which the basic structure operates) and the level of the “conception” (which is the level at which the Amendment operates) is made clear if we consider the case of R.C. Poudyal: in R.C. Poudyal, which dealt with the accession of Sikkim to the Indian Union, one of the challenges involved a departure from the one-person-one-vote principle when it came to elections within Sikkim. It was argued that this violated the basic structure, because it went against democracy. The Court upheld it, however, noting that there were many different forms of democracy that were consistent with the concept of democracy. Similarly, there are many visions of equality – many concrete manifestations – that remain consistent with the concept of equality. A basic structure challenge can succeed only if equality itself is abrogated – for example, if Article 14 is repealed altogether, or if a Bill of Attainder is passed (which was the issue in Raj Narain).

Arbitrariness 

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has no relation with the goal of reservation. In other words – as many people have pointed out – reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.

This raises a fascinating constitutional question, which is yet to be resolved: are there specific articles that are so important and crucial, that they themselves constitute basic features? In particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a constitutional amendment can be challenged, like an ordinary law, on the basis that it violates one of these articles?

The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality, freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional amendment.

Conclusion

There are powerful legal and constitutional arguments against economic reservation. However, what the above discussion has shown is that they operate at the level of the law: they would succeed were it the case that legislation was being tested against the basic structure.  However, it is far more difficult in the case of a constitutional amendment. Ironically, this is because of the precise reason that has given so much fodder to basic structure critics – the Court’s refusal to define it in concrete and specific terms. As long as economic reservation is defensible on a ground that is recognisable in terms of equality, the fact that it departs from how equality and social justice is presently understood in the Constitution, is no ground for striking it down. And that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a basic structure challenge.

 

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

Tags

discrimination, disparate impact, elections, Equality, panchayati raj

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

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

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

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

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

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

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

B. Discrimination as a contextual enquiry

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

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

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

 

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

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

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

 C. Analogous grounds

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

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

Conclusion

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

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

Tags

article 14, autonomy, contracts, Decisional Autonomy, delhi high court, dignity, disparate impact, Equal Pay for Equal Work, Equality, labour law, non-discrimination, Regularisation

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

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

Article 14 and Genetic Discrimination

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

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

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

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

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

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

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

Uncertainties over Horizontality

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

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

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

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

Legal Interpretation in the Shadow of the Constitution

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

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

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

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

And:

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

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

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

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

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

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

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

Indirect Discrimination

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

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

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

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

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

Notes from a Foreign Field: The South African Constitutional Court’s Decision on Gender Equality and Customary Marriages

Tags

constitutional court of south africa, customary law, Equality, Gender Discrimination

(This guest post, on a recent judgment of the Constitutional Court of South Africa, is authored by Tim Fish Hodgson. Tim works on socio-economic rights, is based in Johannesburg and is a former law clerk of Justice Zakeria Yacoob. He is cricket nerd, a law jock and identifies as a heretic. He tweets from @TimFish42. He writes in his personal capacity.)

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On 30 November 2017, the Constitutional Court of South Africa handed down an important judgment in Ramuhovhi, which consolidates and expands its body jurisprudence on gender equality in customary marriages and in terms of the recognition of customary marriages.

Ms Munyadziwa Netshituka, a black woman from South Africa’s poor, largely rural, Limpopo province was married to Mr Musenwa Joseph Netshituka. Ms Netshituka was not, however, the only Ms Netshituka to whom Musenwa was married. During his lifetime he concluded both civil and customary marriages with Munyadizwa and customary marriages with three other women: Tshinakaho, Masindi and Diana. Polygamous marriages are permitted in terms of Venda custom.

Musenwa died in 2008 and a dispute arose about how his property should be divided. In Venda customary law, ownership and control of marital property is reserved solely for husbands. However, Mr Netshituka’s will clearly indicated that he believed that he and Munyadizwa were married in community of property and had a “joint estate”. Indeed Munyadizwa was the registered as half-owner of valuable immovable property upon which the Why Not Shopping Centre is located.

When litigation was initiated, Munyadizwa was Mr Netshituka’s only remaining spouse at customary law (Tshinakaho, Masindi and Diana were all deceased). Upon Mr Netshituka’s death two of his sons (those of Tshinakaho and Masindi respectively) sought to challenge Munyadizwa’s right to ownership of this property in particular, and (as indicated above) they based their claim on Vedna customary law. And, if they had succeeded in proving the application of Venda customary law, this argument would have prevailed, potentially leaving Munyadizwa in a treacherous financial position.

Customary law in South Africa’s constitutional democracy

However, in South Africa’s constitutional dispensation customary law cannot be read in isolation. Venda customary marriages, like all other customary marriages, are also protected in terms of the Recognition of Customary Marriages Act (The Act). This includes both monogamous and polygamous relationships.

The Act was passed by Parliament in 1998 to give effect to the South African Constitution, which specifically contemplates protection of “marriages concluded under any tradition, or a system of religious, personal or family law”. This Act is therefore of considerable importance. According to the Constitutional Court, it:

“represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country.”

Moreover, as with all other laws, traditions and practices in South Africa, the provisions of the Act must comply with the Bill of Right’s powerful protection of equality. The “achievement of equality” is a founding value of the Constitution, which also entrenches the right to “equal protection and benefit” of the law. It explicitly outlaws discrimination based on both “gender” and “sex”. Furthermore, when customary law is inconsistent with the Constitution, courts are required to “develop” it to ensure that it “promote[s] the spirit, purport and objects of the Bill of Rights”.

Women in Munyadziwa’s position have frequently needed to call on these constitutional provisions to ensure their own protection in terms of customary law. Without them, the Act itself is insufficient. It treats different marriages differently with serious consequences for women. Section 7(1) of the Act regulates such consequences of marriages concluded before the Act’s commencement (“old marriages”) while section 7(2) of Act governs those concluded after the Act’s commencement (“new marriages”).

 The basic and disastrous difference is that while “new marriages” are treated as marriages in community of property (where all property is shared equally between the spouses), the proprietary consequences of “old marriages” remain regulated by customary law. To return to the facts of this case, Mr Netshituka’s sons were therefore relying on the fact that the present case featured an “old marriage”, and therefore, Venda customary law (and not the “community of property” regime under Section 7(1)) would apply.

 The Constitutional Court and customary marriages

 The Constitution Court can (and should) be criticised from a feminist perspective. It has failed to identify, disregarded or ignored gender-specific arguments presented to it by women more often than it should have. It has also handed down some startlingly regressive judgments. Its infamous judgment(s) in Jordan, for example, unanimously refused to strike down legislation criminalising sex work saying: “dignity of prostitutes is diminished not by [the law] but by their engaging in commercial sex work”.

Nevertheless, overall, it has through its jurisprudence committed itself to the protection of formal and substantive equality for women. It has also, at times, been alert to systemic sexism in the form of patriarchy. It has described gendered patterns of behavior and gender-stereotypes as “a relic and a feature of the patriarchy which the Constitution so vehemently condemns”. Its broad position on gender equality has been no different in cases on African customary law.

In 2008, in Gumede, the Constitutional Court had already declared section 7(1) to be unconstitutional to the extent that it applied to monogamous “old marriages”. In coming to this conclusion, it reasoned that this provision is “self-evidently discriminatory” on the ground of gender. It was emphatic that the continued application of the provision in the context of Ms Gumede, an isiZulu women living in the KwaZulu-Natal province, negatively “affected wives in customary marriages” because they “are considered incapable or unfit to hold or manage property”. Women, the Court continued, are “expressly excluded from meaningful economic activity in the face of an active redefinition of gender roles in relation to income and property”.

The task in front of the court in Ramuhovhi, then, was simply to decide whether its reasoning in Ms Gumede’s case on monogamous “old marriage” could be extended to Munyadziwa’s case on polygamous old marriages. Quoting heavily from Gumede the Court confirmed that section 7(1) of the Act “perpetuate[s] inequality between husbands and wives” in old marriages. More specifically, it found that the provision clearly had the effect of violating Munyadziwa’s right to dignity and her right not to be discriminated against based on her gender and marital status. As a result, the challenge to Munyadizwa’s right to own, inherit and control marital property thus failed.

In its judgment, the Court also considered whether s 7(1) could be saved by s 7(4) of the Act. Section 7(4) permits couples to “jointly” approach a court to change the matrimonial property system applicable to “their marriage or marriages”. The Court’s response speaks to a strong understanding of unequal power relations between men and women in South African society. Describing s 7(4) as “cold comfort, if not pie-in-sky” for most women the court reasoned:

“The fact of not owning or having control over marital property renders wives in pre-Act polygamous marriages particularly vulnerable and at the mercy of husbands. They cannot be in an equal-bargaining footing for purposes of reaching agreement to make an approach to court in terms of section 7(4). In fact, some may even be cowed not to raise the issue at all.”

To cap off this reasoning the court added that it “it does not require rocket science” to know that most women “may not even be aware of the existence of the provisions of section 7(4)”. This observation is undoubtedly correct. A mere 46% of South Africans have ever heard of the existence of either the Constitution or the Bill of Rights, while a depressing 10% of people had ever read the Constitution or had it read to them. If people do not know their fundamental constitutional rights it takes legal fiction of science-fiction like proportions to imagine these same people will know complicated, hidden provisions of laws on the statute books.

Customary law and colonialism

 It is worth noting that the Constitutional Court has been particularly careful to respect customary law and to acknowledge the genesis of its patriarchal problems in its judgments. These problems have their origins both in patriarchal African cultures and their “formalisation and fossilisation” but Dutch and British colonial powers and the apartheid government. Therefore, though the court does not deny that patriarchy “has always been a feature of indigenous society” in Bhe it observed that:

“At a time when the patriarchal features of Roman-Dutch law were progressively being removed by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.”

The result was the development “a particularly crude and gendered form of inequality, which left women and children singularly marginalised and vulnerable” in African customary law which was “recorded and enforced by those who neither practised it nor were bound by it”. These people were white settler colonialists.

The Constitutional Court’s approach to these cases has therefore been to prefer to acknowledge the organic development of “living customary law” – which is developing in a diverse and dynamic manner constantly – instead of repeating the colonial approach of strictly imposing rules from the judges’ lofty positions.

The Court’s understanding of patriarchal power imbalances, combined with its recognition that “those who were bound by customary law had no power to adapt it”, has made it very receptive to women who have approached the court in search protection. It is also critical in dispelling the myth that black African cultures and customs are any more or less patriarchal then the rest of South African society. Patriarchy, the Court rightly observes, “has worldwide prevalence”.

Constitutional promises and constitutional realities

However, as is often the case, paper-based legal protection provides paper-thin protection to women in reality. As retired Justice Zakeria Yacoob has said, contrary to the popular belief of human rights lawyers and bourgeois elites in particular, “our Constitution did NOT create the society it envisaged”. In truth, no Constitution can. Such is the pernicious and ubiquitous impact of patriarchy amongst all customs, cultures and races in South Africa.

And so, almost 20 years after the formal recognition of customary marriages in terms of the Act, women such as Munyadziwa Netshituka bravely continue to approach South African courts clutching onto “the right to equal protection and benefit of the law”. They do so simply to access the rightful benefits of their marriages and life’s work. Sadly, they often also seek protection from both their marriages, families, communities and the law itself.

But translating the constitutional promise of gender equality into a constitutional reality cannot be the business of courts alone. A monumental societal shift is needed. Women like Ms Gumede, Ms Netshituka, Ms Bhe and Ms Shilubana all around South Africa are pushing for this change on daily basis. Too many men refuse to budge, accepting instead the continued spoils of patriarchy. For as long as we men – whether white Jewish men, black Venda men, or Indian Muslim men – continue to endorse and support patriarchy, women will have to continue to fight back using any means they have at their disposal.

To paraphrase the Constitutional Court’s rhetorical question in its judgment in Ramuhovhi, on of the key questions remains: “how many [men] would readily give up their position of dominance?” If the number does not increase dramatically, exponentially and urgently, for all the constitutional protection provided to women (and all the beautiful prose in the Constitutional Court’s judgments), they will continue experience the society in envisioned in the Constitution as elusive: more fiction than fact.

The Leprosy PIL: A Chance to Rethink Equality under Law

Tags

article 14, article 15(1), Equality, non-discrimination

Today, the Supreme Court issued notice on a petition filed by the Vidhi Centre for Legal Policy challenging provisions from as many as 119 statutes, which discriminate against people with leprosy. The petition follows the 256th Law Commission Report, which highlighted the discriminatory legal landscape against persons with leprosy, and called for its elimination.

The petition challenges these statutes (that range from election disqualifications to employment discrimination) on the expected grounds of Articles 14, 19 and 21 of the Constitution. I suggest, however, that this case provides, in addition, an opportunity to the Supreme Court to reconsider and evolve its jurisprudence of equality, which has been rather sterile in recent years (and decades). This opportunity exists because leprosy, insofar as it has been a historic site for group-based discrimination, is similar to the prohibited characteristics under Article 15(1) (race, caste, sex etc.), but of course, does not fall within any of them. Consequently, while the equality-based challenge to these discriminatory statutes will have to be made under Article 14, the Court can advance a theory of discrimination that dispenses with the classic intelligible differentia/rational nexus test under Article 14, and applies a higher threshold of scrutiny in circumstances where the ground of discrimination is similar to, but does not fall within, the listed grounds under Article 15(1).

Note that this is not unprecedented. The Delhi High Court did exactly this when it read down Section 377 of the IPC in 2009. The Supreme Court overturned that judgment in 2013, without undertaking any analysis of the High Court’s 14-15 synthesis.

I have written an article that defends this view, and considers its extension to exactly the kinds of laws under challenge in the present petition – i.e., those that discriminate against people with leprosy. The article can be accessed here.

 

 

Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

Tags

article 14, article 15, Equality, narasu appa mali, Personal Law, triple talaq

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

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On the 11^th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

• Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.

Conclusion

Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.

 

The Invalidation of S. 2(q) of the Domestic Violence Act: A Comment

Tags

article 14, domestic violence act, Equality, intelligible differentia, rational nexus

Last week, a two-judge bench of the Supreme Court struck down Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 [“DV Act”], on the basis that it violated Article 14 of the Constitution. Section 2(q), which is part of the definitional clause of the DV Act, read:

“…”respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

To understand what, precisely was at issue, it is also important to set out the definitions of “aggrieved person” and “domestic relationship”. Section 2(a) defined an “aggrieved person” to mean “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defined domestic relationship as “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

The effect of Section 2(q), therefore, was that insofar as a domestic relationship was concerned, an aggrieved woman could proceed only against male perpetrators of domestic violence. However, if the domestic relationship was a marriage or a relationship in the nature of a marriage, the aggrieved woman could file complaints against the relative of her husband/male partner. It is important to note that it is, by now, settled law, that under the proviso to Section 2(q), women could be respondents. Consequently, the distinction drawn by S. 2(q) was between marriages/relationships in the nature of marriage on the one hand, and other domestic relationships on the other. In the former case, female relatives of the husband/male partner could be made respondents, while in the latter, a respondent could only be an “adult male”.

The Supreme Court found that this distinction was irrational, arbitrary, and contrary to Article 14. For the most part, the judgment is a textbook application of Article 14 doctrine, and needs no comment. However, a couple of interesting issues do arise out of the judgment, which deserve to be examined.

The first is the issue of legislative purpose under Article 14. Relying upon Shashikant Laxman Kale vs Union of India and Harbilas Rai Bansal vs State of Punjab, Justice Nariman held that the Statement of Objects and Reasons and the Preamble of the DV Act must be examined to discern its purpose. Reading the two together, he found that the purpose of the Act was to “provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family.” (emphasis his) (paragraph 16) In light of the wide definition of ‘domestic relationship’, which included members of both sexes (paragraph 18), the amendments to the Hindu Succession Act that now made women co-parceners in a joint family (paragraph 18), the gender-neutral definition of “domestic violence” under Section 3 of the DV Act (paragraph 19), and the fact that the remedies under the Act (such as protection and residence orders) could easily be defeated if “respondent” was limited to adult male persons (paragraph 20), he then held that the classification under S. 2(q) failed the rational relation test under Article 14. This was not just true for “male”, but for “adult” as well, since it was easy to envisage 16 and 17- year olds engaging in acts of domestic violence within shared households (paragraph 24). The linchpin of Justice Nariman’s opinion, which he repeated, was that “the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.” (paragraph 31) The phrase “domestic violence of any kind” was repeated in paragraph 36.

In short, therefore, the Court struck down S. 2(q) on the basis that the distinction it drew between the persons who could be arraigned as respondents in the case of marital relationships, and other kinds of domestic relationships, bore no rational relation with the purpose of the Act, which was to protect women against domestic violence of “any kind”, or of “all forms”. This legislative purpose was drawn from its statement of objects and reasons and the Preamble.

It is important, however, to draw a conceptual distinction between two kinds of “legislative purposes”. In the first sense, “legislative purpose” is what the legislature actually had in mind (to the extent that collective purposes make sense) when enacting the statute, something that a Court can determine by looking at the text and surrounding documents of the law. This is what Justice Nariman did in the present case. Call this the “intended purpose“. In the second sense, “legislative purpose” is a purpose that can be justifiable attributed to a statute, regardless of whether or not it was actually within the contemplation of the legislature while drafting the law. Call this the “justified purpose“. In this case, after having found that the stated purpose of the Act was to protect women against domestic violence of “all kinds”, and that the S. 2(q) classification did not serve this purpose, Justice Nariman did not ask (and indeed, the State did not propose) whether S. 2(q) could be plausibly justified in relation to any other possible legislative purpose. Here is one possible candidate:

“The Domestic Violence Act understands “domestic violence” as not simply violent acts committed by one person upon another within a domestic setting, but as a problem that flows from differential, structural power relations between men and woman in the family (which is why only women can be complainants under the Act), and therefore, primarily seeks to prevent male-on-female violence. While we may disagree with this framing, it is within the realm of legislative discretion to make this call. This accounts for S. 2(q). However, the legislature was also cognisant of the fact that the marital relationship is a space where women are specifically vulnerable, in no small part because in many circumstances they must leave their homes and live with their husband’s family. Consequently, the legislature chose to carve out a proviso to S. 2(q) to deal with the heightened vulnerability of women in marital relationships.”

I am not arguing that this restated purpose of the Domestic Violence Act would necessarily clear Article 14 scrutiny. It might be argued, for instance, that even if one is to accept the argument that domestic violence is structural and institutional, acts of domestic violence can and are committed by both men and women – and so, even if we were to take the above argument on its own terms, it would fail the test of rational classification (in that case, however, the Court would also have to explain why the legislature’s identification of the specific harm that it was seeking to prevent was irrational and could be overridden in a judicial enquiry). What I am arguing, however, is that principles of judicial deference and the presumption of constitutionality would require the Court to adopt a generous approach towards the determination of legislative purpose, which would include, at times, reconstructing legislative purpose in a manner that would make the strongest case for the constitutionality of the law. If, even then, the law failed Article 14 scrutiny, then of course, it would need to be struck down.

As an aside, it is also interesting to take note of the path that this judgment did not take. Recall that in Yusuf Abdul Aziz vs State of Bombay, the Supreme Court upheld the constitutionality of adultery law against a gender-equality challenge (women are not liable in case of adultery) on the basis that it was saved by Article 15(3) of the Constitution (“special provisions for women and children”). An argument could have been made in this case that exempting a class of women from legal liability was exactly what was done in Yusuf Abdul Aziz, and upheld under Article 15(3). The problems with that approach are too many to list out here, and so, it is certainly a good thing that the Court showed no signs of retracing its steps along that road.

 

The BCCI Controversy, Public Functions and Cultural Goods, and the Return (?) of the Functional Test

Tags

bcci, cultural goods, Equality, Public Functions

Last month, a two-judge bench of the Supreme Court delivered its judgment in Board of Control for Cricket vs Cricket Association of Bihar. The Court accepted most of the recommendations of the Lodha Committee, which it had established through its previous order in the same case, in January 2015, and directed their implementation. These recommendations included extensive restructuring of the BCCI (e.g., age limits, conflicts of interest, and so on). Unsurprisingly, this has proven controversial. Markandey Katju, the BCCI’s ‘legal advisor’, has strongly criticised the judgment for violating the separation of powers, and also for contravening the Tamil Nadu Societies’ Registration Act (under which the BCCI is registered) by judicially altering the terms of association of a private society.

There are, however, two separate questions here. The first is whether the BCCI’s structure and functioning is subject to judicial review at all, and if so, on what basis and under which principles. The second is whether the kind of systematic overhaul recommended by the Lodha Committee ought to be implemented by the judiciary, or by Parliament (Katju’s separation of powers argument). The two questions are tangled up, because it is only after providing a principled basis (if any exists) justifying judicial intervention into the workings of a (technically) private society such as the BCCI, can we then ask whether the manner in which the Lodha Committee did it was justified or not. For this, we need to go back to the Supreme Court’s January 2015 order.

The facts that led up to the passing of that order are rather complex, but very briefly, allegations of match-fixing had dogged the Indian Premier League (IPL). In response, the BCCI constituted a probe panel. The Cricket Association of Bihar filed a writ petition against this in the High Court of Bombay, and also filed another writ praying for the removal of the BCCI President as well as the cancellation of the franchise of two IPL teams. And in yet another proceeding, the Association challenged Rule 6.2.4. of the BCCI Regulations, which allowed administrators to have commercial interests in the IPL. After the Bombay High Court passed various orders on these proceedings, the matter reached the Supreme Court. On 8th October 2013, ‘with the consent of the parties’, the Supreme Court constituted a ‘probe committee’ to look into the allegations of match-fixing. The Probe Committee returned damning findings against both players and officials. On 16th May 2014, the Supreme Court then constituted an investigation team to help the Probe Committee conduct an enquiry into the specific accusations. Its report was placed before the Court towards the end of 2014. The Supreme Court then framed seven questions, including whether allegations of match-fixing stood proven, the quantum and nature of punishment, the legality of Rule 6.2.4., and consequential orders.

Before the Court could do any of that, however, it had to work out the exact relationship between the judiciary and the BCCI, an ostensibly private body. Consequently, the first question that the Supreme Court framed was:

“Whether the Board of Cricket Control of India is ‘State’ within the meaning of Article 12 and if it is not, whether it is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India?”

The Court’s discussion of this question is contained in paragraphs 20 – 30 of the judgment. Previously on this blog, we have discussed the history of the Supreme Court’s Article 12 jurisprudence. Very briefly, for a few decades, the Court fluctuated between a ‘functional test’ (i.e., looking to the functions a body is performing in order to determine whether it could be equated to ‘State’ under Article 12, and therefore subject to fundamental rights claims), and a ‘legal’ test (i.e., whether the legal form of the body can be equated with that of the State). In Pradeep Kumar Biswas, and then in Zee Telefilms, the Court finally – and decisively – adopted the legal test, holding that a body fell within Article 12 only if it was “functionally, financially or administratively” under the control of the State.

However, while the Supreme Court ultimately decided upon a narrow interpretation of Article 12, in a parallel set of cases, it began to develop a jurisprudence around ‘private bodies dealing with public functions’. The genesis of this was Justice Mohan’s concurring opinion in Unnikrishnan, where he held that educational institutions discharged a public duty, which require them to “act fairly“. This approach saw its culmination in the Zee Telefilms Case – which, as a matter of fact, was about the Article 12 status of the BCCI (!). After holding that the BCCI was not State under Article 12, on an application of the control test, the Court then went on to observe that ““it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.”

A private body discharging public functions, therefore, could be subject to the writ jurisdiction of the High Courts under Article 226, for the vindication of the rights of citizens (for a discussion of what exactly this might mean, see the comments to this post).

Let us come back to the BCCI judgment. From paragraph 20 to 29, Thakur CJI recounted the judicial history of Article 12, with its culmination in Zee Telefilms. In paragraph 30, he explained why, in his view, the BCCI was performing a ‘public function’. The reasons can be broadly summarised as follows:

• The BCCI had complete control over the game of cricket in India (including control over the careers of players)
• The BCCI’s activities were of considerable financial scope (infrastructure, expenditure on coaches, pension schemes, selling broadcast and telecast rights)
• The BCCI was exercising these functions with the “tacit concurrence” of the government, which had chosen not pass any law diluting the BCCI’s monopoly.

For this reasons, Thakur CJI held that the BCCI would be subject to “the standards generally applicable to judicial review of State action.” Later in the judgment, he noted that the setting up of the Probe Committee “was issued in exercise of appellate powers vested in this Court in proceedings under Article 226 of the Constitution” – thus linking the Court’s actions to the public function test, via Article 226.

After an extensive discussion of the match-fixing itself (which need not concern us here), the Court moved on to the validity of Rule 6.2.4., which allowed administrators to have commercial interests in the IPL and other T20 tournaments. Note that, technically, Rule 6.2.4. was an internal regulation of a private society, something that the Court had repeatedly held was (more or less) beyond judicial scrutiny (see, e.g., Zoroastrian Cooperative and other cases). In paragraph 69, this was Thakur CJI’s response:

“We have, while dealing with question No.1 above, held that BCCI is amenable to writ jurisdiction under Article 226 of the Constitution as it discharges “Public Functions”. The natural corollary flowing from that finding is that all actions which BCCI takes while discharging such public functions are open to scrutiny by the Courts in exercise of their powers under Article 226 of the Constitution. It also implies that such actions shall when under scrutiny be judged by the standards and on principles that govern similar actions when taken by the State or its instrumentalities. The approach which a Court exercising powers of judicial review of administrative action adopts will remain the same irrespective of whether the action under review is taken by the State or its instrumentality or by any non statutory non government organisation like the BCCI in the case at hand. It follows that Rule 6.2.4 will be subject to the same tests and standards as would apply to any similar provision emanating from a statute or the general executive power of the State.”

There is, however, a crucial elision in the two underlined portions. In the first, the Court made the (uncontroversial) claim that when adjudicating upon the performance of a public function, it would exercise its jurisdiction following principles of judicial review of administrative action (that is, the Wednesbury standards, or one of its variants, most of which are marked, to different degrees, by judicial deference). However, at the end of the paragraph, the Court equated judicial review of Rule 6.2.4. to that of a statute, or executive action. This, however, is an entirely different standard altogether. When considering a challenge to a statute or to an executive act, the Court, far from employing standards governing judicial review of administrative action, tests the statute for compliance with legislative competence, and with Part III. In other words, if Rule 6.2.4. is akin to a statute, then Part III would apply to it directly, in the same manner as if the BCCI was State under Article 12 – which, as we have already seen, it is not.

The waters were further muddied in paragraph 73, when Thakur CJI noted that “in the light of the Articles of Association, we find no infirmity in the amendment to Rule 6.2.4 in so far as the legislative competence (if we may use that expression) of the authority that brought about the amendment is concerned.” Surely, this usage is not innocuous!

Subsequently, considering Rule 6.2.4. on its merits, the Court invalidated it on two grounds: first, that in allowing a man to be a judge in his own cause, it violated principles of natural justice, noting specifically that “the significance of the principles of natural justice visa-vis Article 14 of the Constitution is no longer res integra. The principles have been held to be a part and parcel of the guarantee contained in Article 14.” Secondly, it struck the Rule down on grounds of public policy, holding that it defeated the “high ideals of fairness and objectivity in the discharge of public functions.”

Bracketing out the second argument for the moment, if we read paragraph 69 alongside the Court’s examination of Rule 6.2.4., then I would suggest that it is at least strongly arguable that the Court held that private bodies performing public functions are directly subject to Part III of the Constitution. It treated the BCCI’s internal regulations as a statute, and then applied Article 14 to it. This would seem to mark a return of the functional test through the back door, with the rider that since private bodies performing public functions are (technically) not ‘State’, you cannot go straight to the Supreme Court under Article 32, but must first go to the High Court under Article 226.

Such a position (I would submit) requires a close and careful definition of what, precisely, constitutes a ‘public function’. It is here that the Court’s analysis is not entirely satisfactory. The three reasons – complete control over cricket, large-scale financial stakes, and State concurrence – are indicative of public functions, but they are surely not determinative. Without any examination of what it is about cricket that makes a monopoly over it public in nature, or that gives financial transactions a public character, the analysis is incomplete; and the State concurrence point could be applied to any other field of work as well, where there is no existing statute.

In a recent article, Suhrith Parthasarathy provides an important justification. He writes that “in India, where cricket plays such a pervasive role, the sport would therefore have to necessarily be seen as a primary cultural good, one which, to borrow from another American, the philosopher John Rawls, is critical to the fulfilment of a person’s conception of a good life.” As Rawls (and many other scholars) have noted, human beings need access to a basic set of goods to be able to lead a dignified and full life. At a basic level these include access to food, shelter, and so on, but at a more abstract level, they also include intangible goods such as cultural and social membership. Communal participation in events such as popular sports constitute an important manner in which people establish meaning in their lives. Consequently, bodies that act as gatekeepers of access to cultural goods must be deemed to be performing public functions.

The access-to-basic-goods approach, I would suggest, ought to be the blueprint upon which the Supreme Court builds its private-bodies-public-functions approach. Arguably, we claim and enforce fundamental rights against the State primarily because of the power that it exercises over us, a power that gives it the ability to control access to the most basic human goods (such as life). Similarly, when non-State bodies wield and exercise such power (including power over cultural goods), then the too must be subjected to similar standards. Note that the kind of standards to which it would be subjected to would have to have a relevant link to the question of access (for instance, if a private body controlled the entire water supply of a community, we would impose standards of Article 15 non-discrimination upon it as far as distribution of water went; but would we also directly, and in the absence of a statute, impose the same standards upon its hiring policies?)

All this, of course, is independent of what the Supreme Court actually did, finally, which was to impose a whole new structure upon the BCCI through the Lodha Committee Report. I do not claim here that the access/public functions argument justifies such intervention (in fact, I do not think that it does). It is one thing to say that the BCCI is subject to public law or Part III standards, and quite another for an external authority to so fundamentally transform it. The debate on this second aspect will continue; on the first, however, the BCCI judgment provides us with an important platform upon which to further think through issues of public functions and public standards; and – arguably – it sets a precedent for applying Part III of the Constitution directly to private bodies performing public functions.

Today: The Supreme Court’s nod to structural discrimination

Tags

effect-based test, Equality, indirect discrimination, structural discrimination

In a judgment handed down today, the Supreme Court held that the de-boarding of a disabled passenger from a Spice Jet airplane was illegal and violated her rights. It also issued some guidelines with respect to the treatment of disabled persons at airports under existing laws and regulations. In addition, constitutional observers might find certain observations in paragraph 39 to be of interest. Justice Sikri notes:

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

What is striking about this passage is the complete absence of the language of intention/motive in defining discrimination. As we have discussed extensively on this blog before, the dominant approach (with the odd exception) of the Indian Supreme Court towards equality has been to understand the word “grounds” under Article 15(1) [“The State shall not discriminate on grounds only of…”] as qualifying “the State”, and thereby, holding that discrimination exists only if it can be shown that it was the intention, or purpose, of the law to discriminate. This approach is based upon a belief that discrimination is comprised of a set of conscious, intentional, definable, and individual acts.

This, however, is no longer the model followed in many other jurisdictions. Courts now focus upon the effects of government policy or laws, with the understanding that even seemingly neutral norms have the effect of excluding and subordinating people and groups by virtue of the fact that these norms are part of a non-neutral system of structures and institutions.

The underlined portions of the above excerpt strongly endorse the structural, effects-based model. They shift the emphasis from the reasons or motivations governing the discriminatory action, to the right of the discriminated group to enjoy equal access to public goods. And they also place the focus upon remedying systemic discrimination.

While these remain incidental observations of a two-judge bench, it is important to acknowledge that they provide an alternative approach towards equality under the Constitution, with admirable lucidity and clarity. In that sense, today’s judgment is of significance.