Vikash Kumar v UPSC: An Important Judgment on Disability and Reasonable Accommodation

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

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Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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On the 11th of February, a three-judge bench of the Supreme Court handed down an important judgment in Vikash Kumar vs Union Public Services Commission. The Appellant was a civil services aspirant who suffered from writers’ cramp. However, his application for writing the Civil Services Examination with the assistant of a scribe was rejected by the UPSC, on the basis that he did not have a “benchmark disability”, as defined by the Persons With Disability Act, 2016 (in this case, limited to blindness, locomotor disability, or cerebral palsy, to the extent of 40%). On a perusal of the relevant rules and the Government Office Memorandum issued by the Ministry of Social Justice and Empowerment, the Court found that while individuals with a benchmark disability were entitled to a scribe, those individuals who did not fall within those categories could also be allowed to have one, in the event that they could produce a certificate to that effect from an approved government institution. Indeed, while the UPSC argued in Court that it was not permitted to deviate from the rule of benchmark disability in allowing for a scribe, the Ministry of Social Justice itself observed that there did exist non-benchmark disabilities that could significantly hamper writing ability. The Court then found that this was buttressed by the statutory policy as well: the PwD Act had a separate category for benchmark disability, that was limited to the issue of reservations; it was therefore unwarranted to deny other rights to the residual category of non-benchmark persons with disability. As Chandrachud J., writing for the Court, observed:

The second concept which is embodied in Section 2(s) is that of a person with disability. Section 2(s) unlike Section 2(r) is not tagged either with the notion of a specified disability or a benchmark disability as defined in Section 2(r). Section 2(s) has been phrased by Parliament in broad terms so as to mean a person with a long term physical, mental, intellectual or sensory impairment which in interaction with various barriers hinders full and effective participation in society equally with others. (paragraph 26)  

Having established that the mere absence of a benchmark disability was not sufficient cause to deny the appellant the benefit of a scribe, the Court then went on to engage with the statutory purpose of the PwD Act. The Court noted that the purpose of the PwD Act was to deepen the social commitment to equality, and impose positive obligations – both upon the State and upon the private sector – to ensure that its objectives were fulfilled. For this reason, as an interpretive matter, limiting certain rights ipso facto to persons with a benchmark disability was clearly contrary to the statutory purpose:

Except in the specific statutory context where the norm of benchmark disability has been applied, it would be plainly contrary to both the text and intent of the enactment to deny the rights and entitlements which are recognized as inhering in persons with disabilities on the ground that they do not meet the threshold for a benchmark disability. (paragraph 41) 

Next, the Court considered the concept of reasonable accommodation, at the heart of the PwD Act. The Court noted that, in accordance with the PwD Act, disability was primarily a social construct, in the sense that the barriers imposed upon disabled individuals were because of the way society constructed itself, with a certain concept of able-ness as the norm (a good example of this is the use of stairs – and not ramps – as default structures to connect levels within a building). Consequently:

The principle of reasonable accommodation acknowledges that if disability as a social construct has to be remedied, conditions have to be affirmatively created for facilitating the development of the disabled. Reasonable accommodation is founded in the norm of inclusion. Exclusion results in the negation of individual dignity and worth or they can choose the route of reasonable accommodation, where each individuals’ dignity and worth is respected. Under this route, the “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” (paragraph 45)

Chandrachud J. made four important points about the principle of reasonable accommodation, as set out under the PwD Act: first, it was an individualised principle, which meant that the needs of individuals would have to be considered on a case-by-case basis; secondly, as the purpose of the PwD Act was to advance equality, the burden would lie upon the entity denying reasonable accommodation, rather than the one seeking it; and thirdly, the obligation was immediate in nature – i.e., the right to reasonable accommodation was directly enforceable, and not subject to gradual or incremental fulfilment; and fourthly, reasonable accommodation required meaningful dialogue – or engagement – with the affected individual to determine how best to overcome the barrier in question (paragraphs 44 – 46). Each of these is a crucial interpretive finding in the context of the PwD Act, and the consequences remain to be worked out in the fullness of time.

Importantly, the Court also noted that its 2019 judgment in V. Surendra Mohan v State of Tamil Nadu, which had been severely criticised for its refusal to allow a visually disabled person from becoming a judge, was no longer good law, as it failed to take into account the principle of reasonable accommodation. In particular, Chandrachud J. observed:

By definition, reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden. (paragraph 54 )

Two important inferences follow from this. First, the kind of situation that was upheld as lawful in Mohan – where a blanket 50% visual impairment bar was imposed on qualification for judicial service – would be ipso facto unconstitutional, as it would make reasonable accommodation – in its individualised component – unenforceable; and secondly – other then the evidentiary burden lying upon the entity (State or private sector) denying reasonable accommodation, the legal standard to be met would be that of showing that reasonable accommodation would cause an “undue” or “disproportionate” burden. While this legal standard doesn’t entirely address the basic issue of a world where the norm is that of able-ness (because, by allowing denial of accommodation in “undue burden” cases, it retains able-ness as the norm), it goes some way towards doing so – and much will depend on how future judges interpret the term “undue burden.”

In conclusion – and in this specific case – the Court rejected the Union government’s arguments of potential misuse (using the striking analogy that the solution to copying in an exam using “chits” was not to impose a dress code that would make it impossible for some people to write the exam altogether), directed that the Appellant be allowed a scribe, and also directed the Ministry of Social Justice and Empowerment to frame guidelines on the issue of scribes, taking into account the individualised character of reasonable accommodation.

Vikash Kumar marks the Supreme Court’s first serious engagement with the concept of reasonable accommodation under the PwD Act, and sets out some important principles to help ensure that the Act can fulfil its role in advancing substantial equality under the Constitution. It lays a strong and durable foundation for future cases to build upon.

Guest Post: The Kerala High Court’s Judgment Reinforces the Need for an Anti-Discrimination Law

[This is a guest post by Megha Mehta.]

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The Kerala High Court has recently held in Dr. Prasad Pannian v. The Central University of Kerala that sex-based discrimination per se is not covered by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH”]. According to the High Court, sexual harassment necessarily mandates unwelcome behaviour with sexual undertones (Dr. Prasad Pannian, ¶13). Therefore, the creation of a hostile work environment for a woman employee will not be actionable under POSH unless it is accompanied by direct or implicit sexual advances.

This definition of sexual harassment as being limited to sexual conduct, as outlined under both POSH and the Supreme Court’s Vishaka guidelines (Vishaka v. State of Rajasthan, (1997) 6 SCC 241) originates from the U.S. Equal Employment Opportunity Commission’s (“EEOC”) guidelines. As I have pointed out in an earlier post, feminist scholars in the U.S. have long-since critiqued this conceptualization for propagating a “desire-dominance paradigm” which exclusively focuses on sexual advances by male supervisors against female subordinates. This paradigm excludes equally discriminatory but non-sexual conduct against employees of all genders who challenge hegemonic masculinity. For example, repeated sexist comments on an employee’s performance can undermine their job prospects as much as unwelcome sexual advances, though the degree of social stigma attached to sexual conduct may be higher.

In other words, sexual desire is not the driving factor behind sexual harassment in most cases, though it may be an important component. Sexual harassment is primarily used as a “technology of sexism”, i.e., a tool for enforcing underlying gender hierarchies in various institutional settings. Further, current definitions of sexual harassment ignore that cisgender women are not the only victims of harassment, though they are disproportionately impacted. LGBTQ workers are equally vulnerable to harassment for challenging gender and sexuality norms. Moreover, men often commit same-sex harassment against other men whom they consider as being too “femininized” for the job, as is common in workplace/college hazing rituals. Similarly, women may also harass fellow women employees who are perceived as transgressing societally prescribed boundaries of femininity (See here).  

The manner in which we define sexual harassment has significant implications for the framing of redressal strategies. Though Article 15 of the Constitution of India (“Constitution”) prohibits discrimination in access to public spaces, there is no domestic equivalent of say, the U.S. Civil Rights Act of 1964, or the U.K. Equality Act 2010, for enforcing this prohibition. Similarly, though Article 16 guarantees equality of opportunity in State employment, there is no legislation or agency for monitoring workplace discrimination in the private sector, or even the public sector for that matter. Instead, POSH provides for the constitution of Internal Complaints Committees (“ICCs”) at workplaces to inquire into sexual harassment complaints. It also provides for Local Committees to inquire into cases in the unorganized sector, or where the complaint is against the employer.

Theoretically, ICC inquiries are supposed to be a more convenient mechanism than criminal trials as they involve less rigorous procedures and lower evidentiary burdens. However, in practice, ICC inquiries re-enact the same adversarial he-said, she-said conundrum. This detracts from how the employer or the general workplace environment may have facilitated gendered harassment, e.g., through a “locker room talk” atmosphere. Hence the failure to enforce gender-cum-labour rights is reduced to a “private affair between two private parties”.

Moreover, since ICC’s are constituted from within the same hostile workplace environment, and may include people who are acquainted with the harasser, this creates conflict of interest for conducting the inquiry impartially. They are also unlikely to recommend structural reforms. Consequently, if a sexual harasser knows that their employer is unlikely to treat complaints seriously, this increases their incentive for committing hostile acts. It also means that the victim is less likely to speak out due to fear of retaliation (See here for a more detailed analysis). This is precisely why the Justice J.S. Verma Committee on rape law reform had recommended constituting independent Employment Tribunals to adjudicate sexual harassment complaints (See here, p 130), though arguably ICCs should continue to remain an option for those who find internal remedies more convenient.

Further, neither the Vishaka guidelines nor POSH provide for claiming civil reliefs from an employer who has failed to ensure workplace equity. Notably, the genesis of Vishaka was a public interest litigation highlighting the injustice meted out to Bhanwari Devi, a social welfare worker for the Rajasthan State government, who was gangraped by upper-caste men in her village. The assault was allegedly in retaliation to Bhanwari Devi’s campaign against the practice of child marriage prevalent in the upper-caste community. However, the Supreme Court refrained from addressing the State’s failure to protect Bhanwari Devi from, or compensate her for, the caste and gender-based violence her work engendered. Instead, it noted that criminal adjudication against the perpetrators was sufficient to impose liability (Vishaka, ¶2). Similarly, POSH only posits non-compliance with its mandate as a criminal offence against the State, for which the maximum penalty is a fine of Rs. 50,000 (POSH, Section 26).

This position appeared to have changed when the Supreme Court recently held that under Vishaka, even non-sexual acts of prejudice and discrimination against women employees will constitute a violation of their fundamental rights under Articles 14 and 21 of the Constitution (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394). Accordingly, a woman may claim compensation from her employer for failing to redress such violation of her rights. I had opined in my earlier post (See supra) that this decision paves way for a broader definition of sexual harassment, with an emphasis on unwanted discrimination, not desire; and institutional, instead of individual liability. Prior to this, the Delhi High Court had also noted that sexual harassment is only a species of sex-based discrimination, referring to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) (Punita K. Sodhi (Dr.) v. UOI, (2010) 172 DLT 409, ¶82).

Unfortunately, Dr. Prasad Pannian shows that Indian sexual harassment law is yet to break out of the desire-dominance paradigm. The High Court circumvented Nisha Priya Bhatia by drawing a distinction between cases decided under Vishaka (such as the former), and the present case, which was instituted under POSH. Since the text of POSH circumscribes the definition of sexual harassment to sexualconduct, the High Court held that it was bound by the same. Further, that there was no need for referring to Vishaka or the CEDAW guidelines for interpreting the term more expansively. Therefore, the High Court chose to adopt a strict, textualist interpretation instead of referring to working women’s constitutional right to equality and dignity of life.

Dr. Prasad Pannian sets a troublesome precedent by allowing the text of the legislation, i.e., POSH, to control the constitutional guarantee against sex-based discrimination, instead of vice versa. On the other hand, in the High Court’s defense, judicial revisionism can only plug legislative gaps so far. Even if the definition of sexual harassment under POSH is interpreted in accordance with Nisha Priya Bhatia, it will continue to exclude forms of harassment such as sexual orientation discrimination, transphobia and same-sex harassment. It may also be argued that given the special stigma attached to sexual offences, sexual harassment and gendered discrimination need to be defined separately for legal purposes, though both are ultimately symptoms of the same malaise.

Further, POSH demarcates sexual harassment as a separate labor rights violation instead of accounting for its intersectionality with other forms of discrimination. There are no special procedures or aggravated penalties for protecting victims of caste-based or economically coerced sexual violence at the workplace. The Local Committee mechanism is largely inaccessible to women working in the informal sector, who are particularly vulnerable to such exploitation. Domestic workers don’t even have the option of civil relief against the individual respondent-they are legally compelled to pursue a police complaint (POSH, Section 11(1)).  POSH is also ill-equipped to deal with cases of third-party harassment, e.g., street harassment. In such cases, it is the State, rather than any specific employer, which is best placed to intervene to make public spaces safer for women.

Hence, the decision in Dr. Prasad Pannian reinforces the need for a holistic anti-discrimination legislation which mandates State and institutional liability for maintaining equality of opportunity at the workplace and equal access to public spaces. It also needs to be explored whether the constitutional guarantees under Articles 15, 16 and 19(1)(g) should be amended to expressly prohibit discrimination in the private sector, particularly in the context of housing and employment. Until then, courts will continue to compartmentalize sexual harassment within silos of individual sexual misconduct against women, instead of tracing its linkages to broader patterns of discrimination and inequality.

Notes from a Foreign Field: Developing Indirect Discrimination – Bringing Fraser to India [Guest Post]

[This is a guest post by Gauri Pillai.]

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Article 15(1) prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’. The Supreme Court, in the now infamous Nergesh Meerza, read Article 15(1) to mean that discrimination should not be made ‘only and only on the ground of sex’ but could be made ‘on the ground of sex coupled with other considerations.’ On the one hand, the ‘on ground only of…sex’ test functions to bring in a requirement of intention to discriminate. The presence of a reason for discrimination—say, to protect women—operates as an ‘other consideration’, bringing the rule outside the scope of the non-discrimination guarantee, even if the effect of the rule is to disadvantage women (see here). Discrimination in thus understood to mean intentional, individual acts of prejudice tied to the ‘moral blameworthiness’ of actors. There is no recognition that ‘such prejudices are frequently embedded in the structure of society’, the ‘unquestioned norms, habits, and symbols in the assumptions underlying institutional rules and the collective consequences of following those rules’: in other words the ‘everyday practices of a well-intentioned society’, beyond the conscious coercive actions of a ‘tyrannical power’ alone.  On the other hand, the ‘on ground only of…sex’ test excludes indirect discrimination. Facially neutral rules having an adverse effect on members of a specific group would amount to ‘other considerations’ beyond the listed ground, thus placing such rules outside the reach of Article 15(1) (see here).

However, the Supreme Court trilogy in Sabarimala, Joseph Shine and Navtej Johar offers an alternate reading of the non-discrimination guarantee. First, the scope of Article 15(1) was extended to ‘institutional and systemic discrimination against disadvantaged groups’, thereby tackling ‘structures of oppression and domination’ excluding members of these groups from full and equal social, economic, political and cultural participation (Chandrachud J., concurring opinion, Sabarimala, paragraph 117 and Joseph Shine, paragraph 38). Thus, there was a shift towards understanding discrimination in a structural sense. Second, the central enquiry under Article 15(1) was no longer the intention of the discriminator. Rather, the ‘primary enquiry to be undertaken by the Court’ was whether a rule, in form or effect, ‘contributes to the subordination of a disadvantaged group of individuals’ (Chandrachud J., concurring opinion, Joseph Shine, paragraph 38). Finally, the ‘on ground only of…sex’ test was dismissed as a ‘formalistic interpretation’ of Article 15(1), because it failed to recognise the ‘true operation’ of discrimination (Chandrachud J., concurring opinion, Navtej Johar, paragraph 36). Instead of relying on the formal basis of classification—the listed ground ‘plus’ the facially neutral criterion—Article 15(1) was reoriented to focus on the effect a facially neutral rule. In other words, indirect discrimination was recognised, and brought within the scope of the non-discrimination guarantee.

Despite the steps forward, several questions still remain unanswered. How does the recognition of discrimination as a structural phenomenon affect the doctrinal functioning of the non-discrimination guarantee? What is the test for indirect discrimination? How should courts assess the impact of a rule? What forms of impact are relevant? What kind of evidence is suitable and necessary for such impact assessment? Answers to these questions are crucial to enable Courts to apply these concepts going forward. In their absence, these ideas could remain at the level of rhetoric, without translation into doctrine. In this post, I present the recent decision by the Supreme Court of Canada in Fraser v Canada—interpreting the non-discrimination guarantee under Section 15 of the Canadian Charter—as offering clear responses to these questions, and thus providing normative and doctrinal guidance for India. However, before I get into discussing the case, it is important to interrogate briefly why a decision from Canada is relevant for constitutional jurisprudence in India: why should India listen to Canada?

Canada offers a helpful comparative because the constitutional function of the non-discrimination guarantees in the Canadian Charter and the Indian Constitution bear significant similarities. As the Court recognises in Fraser, ‘the root of s. 15  is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed’ (paragraph 77). An identical commitment underlies Article 15, the object of which has been identified as guaranteeing protection to ‘those citizens who had suffered historical disadvantage’ by removing their ‘age-long disabilities and sufferings’. This is reinforced by the placement of Article 15 within the ‘equality code’, consisting of Article 16, which permits the State to treat members of disadvantaged groups differently through reservations, offering them ‘real and effective’ equal opportunity for employment; Article 17, which abolishes untouchability to free Dalits from ‘perpetual subjugation and despair’, ‘social inequity, social stigma and social disabilities’; and Article 18 which prohibits an Indian citizen from accepting titles in order to dismantle social hierarchy, or the perceived superiority of some over the other.

Having set out the similarities in the constitutional vision underlying the non-discrimination guarantees in India and Canada, I now turn to Fraser. In 1997, the Royal Canadian Mounted Police (‘RCMP’) introduced a job-sharing program to provide its members an alternative to taking leave without pay. Under the program, two or three RCMP members could split the duties and responsibilities of one full-time position, allowing each participant to work fewer hours than a full‑time employee. The petitioners, three female employees of the RCMP, enrolled in the job‑sharing program along with 137 other members. Most participants were women, and they cited unilateral responsibilities for childcare as their reason for joining the program. Ms. Fraser described feeling ‘overwhelmed’ as she tried to balance work and family; Ms. Pilgrim felt like she was ‘on a treadmill’; and Ms. Fox recounted the experience as ‘hell on earth’ (paragraph 7). The RCMP introduced a rule deeming the job-sharing position part-time work for which participants could not receive full-time pension credit. This policy was challenged by the petitioners as having a disproportionate, adverse impact on women, thus violating their right to non-discrimination under Section 15.

The Court began by identifying the shift away from a ‘fault-based’ conception of discrimination towards an ‘effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups’. The shift, the Court observed, was premised on the recognition that discrimination is ‘frequently a product of continuing to do things the way they have always been done’ rather than an intentional, prejudicial act by an individual actor (paragraph 31). In other words, the Court identified discrimination as structural, in general. The Court then set out how parenting is structured socially in Canada. Citing evidence, the Court observed that the public sphere, including the workspace, continues to be built on the male norm, and requires an ‘unencumbered worker’ with no responsibilities of care. At the same time, the private sphere, including the home, continues to be built on the labour of women who unilaterally undertake a major share of parental responsibilities (paragraph 104). In other words, the gendered division of labour, a product of inequality between the sexes, is systemically built into the ‘everyday practices’ of Canadian society. While this recognition is significant in and of itself, how did it influence the claim under the non-discrimination guarantee?

The lower courts rejected the discrimination claim holding that while most employees who lost out on pension benefits due to job-sharing were women, the loss occurred due to the ‘choice’ of the petitioners to job-share. The Supreme Court in Fraser however used the understanding of discrimination as structural—in general and in the specific context of parenting—to contest this notion of ‘choice’. The Court observed that choice should not be assessed as against an ‘autonomous, self-interested and self-determined individual’. Rather, a ‘contextual account of choice’, taking into account the ‘social and economic environments’ in which choices play out is necessary. The Court then applied this contextual understanding of ‘choice’ to women’s decision to job-share. The Court argued that the decision to job-share is far from an ‘unencumbered choice’. Against the structurally unequal institution of parenting, the only available option for women—‘euphemistically labelled choice’—is to opt for forms of accommodation like job-sharing, which are associated with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. If so, penalising them for this ‘choice’ by denying them pension benefits both punishes them for inequality, and perpetuates such inequality by exacerbating women’s socio-economic disadvantage, and entrenching stereotypes about women as ‘bad employees’ who ‘do not merit or want more responsible, higher‑paying jobs because they will inevitably prioritize family over work’. Thus, the Court highlighted the ‘flaws of over-emphasising choice’ in the Section 15 enquiry: ‘by invoking the “choice” to job‑share as a basis for rejecting the s. 15(1)  claim, the [lower courts] removed the “challenged inequality from scrutiny, effectively taking it off the radar screen so as to circumvent examination of the equality issues at stake”’ (paragraphs 88-92).

This does not imply that in the absence of inequality, women would never opt to job share and spend time with their children. The Court in fact recognised this by holding that ‘differential treatment can be discriminatory even if it is based on choices made by the affected individual or group’. This is because discriminating on ground of certain choices—like the decision to parent—violates human dignity and is thus inherently discriminatory, independent of inequality (paragraphs 86-86). Thus, the decision to parent was implicitly recognised as valuable by the Court, and job-sharing was seen as facilitating the decision by removing the disadvantage associated with it in the employment sphere. However, the Court did not develop this line of reasoning, as it mapped onto a claim of discrimination on ground of parental status which did not need to be pursued in light of the gender discrimination claim (paragraph 114).   

In assessing ‘choice’ in light of the structurally unequal institution of parenting, the Court also recognised the reason why it was women who primarily made the ‘choice’ to job-share:

[a] number of structural conditions push people towards their choices, with the result that certain choices may be made more often by people with particular “personal characteristics”. This is a key feature of systemic inequality—it develops not out of direct statutory discrimination, but rather out of the operation of institutions which may seem neutral at first glance (paragraph 90).

This then brought the Court to the issue on indirect discrimination. It also normatively grounded the recognition of indirect discrimination as a necessary response to the interaction between seemingly neutral rules and prevalent structural inequality. Indirect discrimination, the Court held, occurs when ‘a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground…Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage’ (paragraph 30). The Court then set out a two-stage doctrinal test for assessing indirect discrimination.

At the first stage, the Court would enquire whether a rule, in effect, creates a distinction on the basis of a protected ground by having a ‘disproportionate impact’ on members of a group within the ground. The Court discussed the nature of evidence that could be used to prove this claim. On the one hand, evidence providing the ‘full context of the claimant group’s situation’ would be useful to demonstrate that ‘membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group’. However, the Court was careful to note that evidence on issues which predominantly affect certain groups may be under‑documented. As a result, claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony. On the other hand, evidence—including statistical evidence—about the outcome of the rule, or a substantially similar one, in practice could offer ‘concrete proof that members of protected groups are being disproportionately impacted’. The Court clarified that there is no universal threshold on what level of statistical disparity is necessary to demonstrate that there is a ‘disproportionate impact’. Declining to craft rigid rules, the Court held that it would vary depending on the case. The Court also noted that both kinds of evidence are not always required: ‘in some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’ (paragraphs 50-72).

Once the petitioner establishes that the rule, in effect, creates a distinction on the basis of the protected ground, the second stage of the enquiry starts. At this stage, the Court asks whether:

the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage…The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (paragraph 76).

Thus, a focus on impact or effect of the rule is built into both stages of the test: first to determine whether the rule draws a distinction on the basis of a protected ground, and second to assess whether the distinction perpetuates disadvantage and is thus discriminatory. Applying the test to the case at hand, the Court held that the rule denying full pension benefits to job-shares, though facially neutral, had a ‘disproportionate impact’ on women. The Court relied on statistics—from 2010‑2014, all RCMP members availing job-share were women, and most of them cited childcare as their reason for doing so—and other evidence—commission reports, academic work and judicial decisions—’about the disadvantages women face as a group in balancing professional and domestic work… because of their largely singular responsibility for domestic work.’ This evidence, the Court held, established the ‘clear association between gender and fewer or less stable working hours’, and proved that the rule drew a distinction in effect between men and women, satisfying the first stage (paragraphs 97-106). Coming to the second stage, the Court held that the denial of pension benefits to women exacerbates women’s historical disadvantage. It impacts them socio-economically, with evidence suggesting that the feminisation of poverty is linked to the disparities in pension policies. At the same time, it also entrenches ‘a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male’. In other words, it retains the ‘male pattern of employment’, continuing to construct the public sphere around the male norm. In light of these ‘far‑reaching normative, political and tangible economic implications’ of the rule, it was held to perpetuate women’s disadvantage, and thus discriminate against women (paragraphs 107-113).

Thus Fraser demonstrates, with great clarity, how understanding discrimination as a structural phenomenon translates into the functioning of non-discrimination guarantee. It allows the Court to resist the rhetoric of ‘choice’ which can be used to subvert claims of discrimination. It also offers a compelling normative grounding for the recognition of indirect discrimination. Fraser further lays out a cogent two-stage test for establishing indirect discrimination, indicates the forms of impact that are relevant and describes the nature of evidence which can be used to prove such impact. It therefore provides clear normative and doctrinal guidance to India in developing the constitutional jurisprudence on indirect discrimination.

To CAP or not to CAP: The Bombay High Court on Equality and Access to Education

In an interesting judgment delivered yesterday (Yash Pramesh Rana vs State of Maharashtra), a Full Bench of the Bombay High Court struck down Government Resolution [“GR”] dated 27.2.2013. This Government Resolution had restricted the application of a fee-reimbursement scheme only to those SC/ST/OBC students who had taken college admission through the government-run Common Admissions Procedure [“CAP”].

The facts were straightforward. To enter an engineering college in the state of Maharashtra, a student had to undertake the Common Entrance Test [“CET”]. On the basis of ranks obtained in the CET, students could then participate in the CAP, and gain admission into any of the colleges that were part of the CAP. However, not all colleges – including some minority colleges (the case itself concerned a Gujarati-language linguistic minority college) – were part of the CAP. Certain colleges had their own admissions process, that was approved by the Pravesh Niyantran Committee. The impugned GR – as indicated above – provided for a fee-reimbursement scheme to SC/ST/OBC students, but limited it only to the former category (i.e., those who took part in the CAP).

In a judgment authored by Dama Seshadari Naidu J., the Bombay High Court found that the impugned G.R. was entirely arbitrary, and violated Article 14 of the Constitution. The judgment is noteworthy, because it was decided almost entirely on the basis of a textbook application of burdens and evidentiary standards under Article 14. The Court observed that as the impugned G.R. created a classification, and disadvantaged one set of people (the category of students that was not granted fee reimbursement), a prima facie case of discrimination was made out. This, then, shifted the burden of justification onto the State. The State essentially produced two arguments: first, that extending the free-reimbursement scheme to all SC/ST/OBC students would be financially prohibitive, and secondly, that students who had gone through the CAP and those who had not constituted two separate “classes”, as the CAP was a transparent, well-documented, well-regulated, and non-discriminatory process of allocation.

On the first count, the Court held that mere financial difficulties, without something more, could not be a ground for discriminatory treatment. In other words, in a class of similarly situated people, the State could not refuse to one set of people a benefit that it was granting to another, on the basis that it did not have the financial capacity. This is self-evidently correct and logical. On the second count, the Court held that the State had failed to bring any evidence on record to show that the non-CAP process was any less rigorous and transparent than the CAP process, in any sense that justified withholding of identical benefits. Indeed, the Pravesh Niyantran Committee was also run by the government. Consequently, as the State had produced no evidence to justify its claim, the impugned G.R. was arbitrary and unconstitutional. As the Court correctly noted, following the US Supreme Court, the presumption of constitutionality would not stretch so far as to imagine the existence of an “undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation.”

It is also interesting to note that Naidu J. framed the dispute within the backdrop of historical inequalities concerning access to education in India (going back to the 1850s), and the use of affirmative action as tool of corrective justice. This was relevant to the case, as one of the arguments raised by the State was that fee-reimbursement was simply a benefit it was conferring upon certain students; as there was no antecedent right to claim fee-reimbursement, a person who had been deprived of it had no locus to move the Court. Now at one level, of course, the Court correctly answered this by stating that any State action – including “largesse” – had to conform to constitutional principles. However, the Court also noted that – within the backdrop of structural inequality in India – fee-reimbursement for SC/ST/OBC students had to be understood as “a facet of affirmative action.” This immediately took it from the domain of largesse/benefits and into the domain of constitutional obligation, thus making it even more incumbent upon the State to frame a non-discriminatory policy of access.

Now, an interesting corollary of the Court’s observation is that if indeed fee-reimbursement is a form of affirmative action, then – as a non-reservation based form of affirmative action – it falls within Article 16(1) of the Constitution (guarantee of equality of opportunity). This raises a host of fascinating questions for the future, including whether specific claims of fee-reimbursement can be made against the State by socially disadvantaged communities (as 16(1) is framed as a right), the fact that such schemes can go beyond SC/ST/OBC communities (as 16(1) affirmative action measures are not limited to 16(4) beneficiaries), and so on. Of course, none of these questions were before the Court; however, it will be interesting to see whether future judgments will carry forward the logic of fee-reimbursement being a form of affirmative action, and what that might mean in practical terms.

Rethinking “Manifest Arbitrariness” in Article 14: Part I – Introducing the Argument

[This is the first in a four-part series excavating the role of the doctrine of arbitrariness in Indian constitutional litigation.]

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Writing in 2015, Prof. Tarunabh Khaitan argued that while the “old doctrine” of equality is too narrow, the solution ought not to be the “new doctrine” of arbitrariness. Instead, the old doctrine itself can be developed further. The old classification doctrine in a traditional sense enquires into the questions of (a) whether there is an intelligible differentia, and (b) whether there is a rational connection between the measure and the objective. Prof. Khaitan argues that theoretically, the classification doctrine itself can be developed by expanding the range of questions to look beyond just those two. Illustratively, the following are questions which a court could ask in this regard over and above the traditional two questions (for a fuller list, see Prof. Khaitan’s piece):

• Does the rule have a disproportionate impact on different classes of persons?
• Is the differentia presumptively impossible?
• Is the apparent objective genuine?
• Is the apparent objective legitimate?

Prof. Khaitan ultimately concludes:

The following conclusions emerge: (a) the ‘classification test’ (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules; (b) it is a limited and highly formalistic test applied deferentially; (c) the ‘arbitrariness test’ is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (at least in the actor-sensitive sense). Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…

The Supreme Court has now confirmed in recent decisions that the “arbitrariness” doctrine is indeed part of Article 14, and that legislative measures can be challenged on the basis of “arbitrariness”; and point (e) above is seemingly no longer reflective of the current position. However, the question of what exactly amounts to a breach of the arbitrariness standard is still unclear.

Several posts on this blog have considered some of the recent judgments of the Supreme Court; but an enunciation of the actual standard remains elusive. This series of essays argues that although the recent cases are labelled as accepting an “arbitrariness” challenge to legislation, they ought not to be taken as referring to the ‘arbitrariness’ of administrative law. When one is thinking through the lens of administrative law, ‘arbitrariness’ is a ground for review of administrative actions. But when one speaks of ‘arbitrariness’ as a matter of constitutional law, one is not speaking of the same thing. ‘Arbitrariness’ in constitutional law is distinct from the ‘arbitrariness’ of administrative law. The constitutional law test is of ‘manifest arbitrariness’; and this series of essays will suggest that “manifest arbitrariness” is not simply “an extreme form of administrative law arbitrariness”: the difference is not merely of degree.

To arrive at a workable test for determining what the content of the Article 14 arbitrariness standard is, this series will examine the judgments of the Supreme Court upholding an arbitrariness challenge to legislation. This is because in cases dealing with challenges to legislation, whatever label the Court may apply, it is clear that the Court is necessarily dealing with Article 14 and not a general administrative law / common law principle. Before proceeding to analyse those cases, however, a brief introductory detour to Royappa (which although not a challenge to legislation is the case most associated with bringing ‘arbitrariness’ into the fold of Article 14) would be valuable. Accordingly, the present post takes a brief look at Royappa; and subsequent posts in this series will then proceed to analyse the other most relevant judgments on Article 14 arbitrariness.

In a famous passage Royappa, Justice Bhagwati noted [para 85 of the SCC report in (1974) 4 SCC 3]:

Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…

This passage has seemingly attained a life of its own. A very quick scan on the SCC Online database for the phrase “in fact, equality and arbitrariness are sworn enemies” results in the following results: 36 judgments of the Supreme Court of India, 223 from the High Courts, and 8 foreign cases (from Bangladesh, Sri Lanka and South Africa). However, mere reproduction of this passage is not sufficient to understand what Royappa holds (and – as importantly – what it does not hold).

There were two judgments in Royappa – one by Ray CJ (for himself and Palekar J.), and another one by Bhagwati J (for himself, Chandrachud J. and Krishna Iyer J.). The two judgments concurred in the result, but there were some differences in the reasoning.

The petitioner in Royappa was a senior member of the Indian Administrative Service. He was appointed to act as the Chief Secretary of Tamil Nadu. In April 1971, he was appointed as Deputy Chairperson of the State Planning Commission. He did not contest this appointment, which he considered to be equivalent in status to that of a Chief Secretary. Thereafter, in June 1972, the Petitioner was appointed as an “Officer on Special Duty”. This post was a non-cadre post; and the Petitioner was aggrieved by this appointment. In a petition under Article 32 of the Constitution, he alleged that the transfer to a non-cadre post was illegal and unconstitutional, and further prayed for a direction to be re-posted as Chief Secretary.

Ray CJ’s concurring judgment found on a detailed evaluation of the facts that the post of “Officer on Special Duty” was not lower in status and dignity that the other posts held by the Petitioner, and that the appointment was not motivated by mala fides. The main difference between the judgments of Ray CJ and Bhagwati J relates to the burden of proof: while Ray CJ found as a fact that the two posts were indeed equivalent, Bhagwati J found that the Petitioner could not demonstrate that the posts were not equivalent.

In dealing with the contention regarding violation of Article 14 because of the transfer, Bhagwati J. framed the question in the following terms (para 86 of the SCC report):

… What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons?

This was answered by holding that the post of Officer on Special Duty was not demonstrably inferior in status and responsibility to that of Chief Secretary. Although prima facie the Court did have doubts about the equivalence of the posts, the materials on record did not enable the Court to reach a conclusive finding about the inferiority of the post.

What is interesting is that the Court also considered the contention that (whatever be the true position on equivalence of the two posts) the transfer was also illegal because the State Government did not apply its mind to the question of equivalence. The Court in fact agreed with this contention, but refused to give relief to the Petitioner. The Court found (para 84):

… the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty… There was thus no compliance with the requirement of Rule 9…

If that were so, one would have thought that the Court would then go on to hold that this non-application of mind to relevant materials is arbitrary. Yet, the Court held:

But we cannot in this petition under Article 32 give relief to the petitioner by sinking down his appointment to the post of Officer on Special Duty… mere violation of Rule 9… does not involve infringement of any fundamental right…

 

 It would seem, then, that the State Government was under a specific duty in terms of the relevant Rules to apply its mind and objectively determine the equivalence of the posts. The Court found that the State did not in fact apply its mind. Yet, this non-application of mind did not rise to the threshold of an Article 14 violation: that is why “in this petition under Article 32”, relief could not be granted to the Petitioner. Thus, non-application of mind – which may well amount to ‘arbitrariness’ in an administrative law sense – would not itself amount to a violation of ‘arbitrariness’ in the Article 14 sense.

The next essays in this series will consider the judgments of the Supreme Court applying the arbitrariness doctrine in adjudicating on the constitutional validity of legislation. It will be suggested that the best understanding of the doctrine is that “manifest arbitrariness” is simply shorthand to expand on the traditional two questions of the classification test. As Prof. Khaitan had argued, “Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review…” That is indeed what has happened: “manifest arbitrariness” is just the label given to the “expansion and substantiation”.

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

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

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

The Policy/Budget Argument 

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

The Parade of Horribles Argument

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

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

The Path Independence Argument

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

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

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

The Unintended Consequences Argument

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

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

Conclusion

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

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

 

Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]

[This is a Guest Post by Karan Gupta.]

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In this post, I respond to Bastian Steuwer and Thulasi K. Raj who wrote a counter to Gautam Bhatia’s post, arguing that there is no justification for the order of the Supreme Court’s free testing order.

They begin by stating that there is an equivalence between accessing tests for COVID-19 and accessing healthcare generally. They are right to point out that the choice against nationalized health care has resulted in a market dominated by private players who impose exorbitant prices and perpetuate inequality. They ask: if the argument for mandating free tests for COVID-19 is based on the effect on those from lower income groups, why is the government “not also required to make cancer treatment free?” To me, this ignores the three core distinguishing features of the COVID-19 outbreak – extremely limited infrastructure, its highly contagious nature (time is of the essence) and the high mortality rate.

It is true that private healthcare for medical conditions such as cancer, organ transplants and dialysis is unaffordable for the poor. At the same time however, incremental steps have been taken to ensure access at government hospitals. The central and state governments have progressively anchored in place numerous schemes such as the CGHS, Rajiv Aarogyasri Community Health Insurance Scheme and the Rashtriya Bal Swasthya Karyakram to increase access to healthcare for those who cannot afford it. Implementation aside, these schemes are enacted after considered deliberation of the trade-offs in increasing public spending, which is consistent with power of the government decide questions of policy. What makes COVID-19 different, is the extremely limited infrastructure available in the government sector to test it. Here, it is not a question of wait time, but of the total lack of infrastructure. Private players in the testing market, albeit limited and subject to government approval, are growing rapidly as well as devising new testing methods. This leads to a situation where, as Bhatia points out – the wealth and economic class determines who can get tested and who can’t. What is the effect of this? The answer is interconnected with other two distinguishing factors of COVID-19 – as WHO terms it –high transmission (extremely contagious) and substantial fatal outcomes (highly deadly).

The contagiousness of every disease is measured by a reproduction number (RO). The RO of COVID-19 is far greater than MERS and arguably SARS. Even with the lowest estimate (2.2 RO as compared to 5.7 RO), 55% of the population needs to be immune from COVID-19 to control its further spread. For comparison, though measles has a RO of 12-18, there exists a vaccine to ensure its prevention and the development of herd immunity. Government programs like Indradhanush 2.0 aim at ensuring the eradication of measles. This is not the case with COVID-19. The best estimates project a time period of twelve more months before a vaccine is developed and is safe for human use. Added to this, the incubation period for COVID-19 is between four to fourteen days, which means that a person may be an unaware carrier and infect numerous people before they either show symptoms or are detected as positive and sent into isolation.

The above has led the WHO to conclude that testing is indispensable to control of the virus. Why are these three distinguishing features important? Considered in this light, two immediate impacts may be noted which help justify the order of the court:

First, for someone who may not be able to afford the 4,500 Rs test from a private lab, not only is their own life at risk, they endanger everyone around them. Keep in mind that as compared to other health issues, movement around the country is currently severely restricted, this inevitably means that there are also more hurdles in accessing public facilities for testing. This ensures that the impact is higher on those from low-income groups. Where those who are economically well-off can access testing, implement isolation measures and slow the spread of the virus, for people from low-income groups, the virus is more dangerous and spreads faster. Inequality here is self-perpetuating and creates what Bhatia rightly calls, clusters of people. COVID-19 only ensures that the creation of these clusters and the perpetuating effect of inequality is more certain, more fast and more deadly. That equality as political concept transcends the narrow legal understanding in Art 14 only helps us push the boundaries of understanding that equality is necessarily context specific and a rights-based argument can validly be made here.

Second, as compared to other health issues, the active containment of COVID-19 is premised on a staggering number of people either developing herd immunity, or every person having recovered. This is significant to prevent its spread in a deeply populous country such as India. Where there is a higher number of people who run the risk of being untested, there a higher chance that the curve is not flattened and the spread and effect of the virus is prolonged over a larger period of time, killing thousands. To agree here with the premise of the authors that it is up to the government to decide when and to what extent testing is made freely available is not hampering healthcare or allowing the government to improve it in a staggered manner, but destroying it completely for everyone. Here, the Court is justified in stepping in to address government inaction.

This brings me to the second point put forth by the authors – that given the unlikely implementation of the order, there is little to no utility to it. There are two points here that need to be addressed: (i) increased government expenditure may require budgetary cuts in other sectors like education or policing; and (ii) the government may, in response, decide to slow down testing further.

Let us assume that the order can be reasonably read as mandating the government to reimburse private labs for their expenses. To argue that mandating increased testing (and consequently increased government expenditure) would lead to cuts in other sectors ignores the temporary nature of the pandemic. The COVID-19 outbreak is different from other health conditions such as requiring an organ transplant or cancer in that the latter will continue to occur. Mandating free treatment for those health issues would have a sustained and debilitating impact on government expenditure and potentially destabilize it. This, I agree, would amount to courts deciding questions of social priority reserved for elected legislatures, which is impermissible. As I have previously pointed out however, this is not the case with COVID-19. A sustained, streamlined and time-bound effect will help stop altogether the virus. Any economic consequence then is temporary and justified in light of the outbreak.

The authors then contend that the government could, to reduce expenditure, shut down or reduce the number of tests being conducted. They suggest that the court may, in response, mandate a specific number of tests to be conducted. Assume this to be true. This, they say, encroaches in the realm of health policy making that requires difficult decision on trade-offs which only elected legislature command the legitimacy to make. This is buttressed on the claim that there are “various approaches towards how to protect a country from a pandemic”. While questions of policy are undoubtedly within the domain of government decision, this requires us to ask why the WHO prescribes – ‘Test, test, test’ and there is growing consensus that this specific methodology is indispensable to controlling COVID-19 specifically.

Where high transmission characterizes the virus, taking adequate remedial measures is premised on a timely detection of the virus to prevent contact tracing or community transmission. To claim that increased costs may impact economic relief packages undermines the vast resources available with the government to overcome a temporary emergency. What the Court may have done is cornered the government into having a hard look at what more it can do, in accordance with WHO guidelines, to prevent the spread of the virus. In any case, if India is to implement the idea to seal only hotspots and open the restricted functioning of other pockets to ‘save the economy’, this is premised on identifying which spots are hotspots in the first place. This cannot be done without a higher rate of testing. While testing is identified and understood as the first step to addressing the pandemic, India currently ranks as one of the lowest in the world in testing.

Even if the court mandates a specific number of tests to be conducted, this does alter the fact that several types of tests may be used. Though the government is constrained to ensure the free provision of a test, it retains the discretion to decide which test it uses, how it is distributed across the nation and how measures complement the efforts of the state governments in increasing testing. It is common knowledge that a large number of people are being turned away from both private and public hospitals. Mandating free testing and possibly a higher number will be consistent with both the growing consensus on how the virus can be prevented in the first place and the discretion that the government possesses in determining questions of policy.

The outbreak of the pandemic and the quick, effective, and certain disproportionate impact on those from the lower income groups briefly reminds me of the disagreement between Rawls and Amartya Sen between a theory of justice and an idea of justice. Our comfort in justifying a hands-off approach by thriving in theory allows us to have an overly sanguine attitude towards the government, its efficiency and concern. This, we say, ensures a continued commitment to the separation of powers. At the same time however, faced with government inaction, immediate and decided measures are indispensable to control the spread of the virus.

This is not to say that our legal commitment to the separation of powers must be thrown out of the window. In what I have shown above, justifying the order of the Supreme Court in the above context is not the same as advocating for its intervention in every situation of public health as the context is informed by the peculiarities of the COVID-19 outbreak. While judges are not experts in governance, they are nevertheless duty bound to address government inaction in the time of a pandemic that affects fundamental rights and threatens seriously the life of every individual. I would agree with Bhatia, that the order is morally, ethically, and constitutionally justified.

Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order

The coronavirus pandemic is a question of public health, but it is also a question of equality. Crucial dimensions of this crisis will be missed if it is framed only as a question of public health. The migrant labour issue – discussed in the last post – presents this starkly, but so does the issue of testing. In an interim order passed yesterday, a Supreme Court bench of Ashok Bhushan and S. Ravindra Bhat JJ directed that testing for Covid-19 in India would be free. The order was subjected to criticism through the course of the day, and it now appears that private labs will move Court for a modification.

Before moving on to the Order itself, it is important to clear two points. The first is that the Order does not mean that anyone can walk into any private lab and get a free test. The ICMR Guidelines for testing determine who is eligible for a Covid-19 test, and – at the time of writing – they remain stringent.

The second point is that there is indeed force in the criticism that the Supreme Court’s order is unclear over who foots the bill for the free tests. To me, it appears an elementary point that it is the State, and therefore, it is a matter of some surprise that the Order leaves that bit to be worked out for later. As many critics pointed out yesterday, private labs – especially smaller ones – are unlikely to be in a position to test for free, and government reimbursements themselves are often delayed. Consequently, to prevent the unintended consequence of making testing more difficult, a mechanism of compensation should have been worked out in the Order itself.

That said, the core thrust of the Order – that Covid-19 testing should be free – is entirely legitimate. It is not judicial encroachment into the policy domain, and it is not a violation of the separation of powers. To understand why, let us recall that the government had capped the cost of testing at Rs. 4,500 for private labs – i.e., private labs could charge upto that amount for carrying out a Covid-19 test. Now consider that in light of the following facts:

1. Covid-19 is a pandemic, and a public health crisis so grave that the entire country is in lockdown.
2. The WHO has noted that the best way to contain Covid-19 is “test, test, test”; there is official guidance, therefore, that testing is indispensable to solving the crisis.
3. A cap price of Rs. 4,500 for testing – in a situation where it is an admitted fact that there is not enough government capacity – essentially means that wealth and economic class determines who can get tested and who can’t.
4. The consequences of not getting tested are:
   1. Potentially not undertaking the very specific set of processes that enhance the likelihood of getting out of the pandemic unscathed. For example, there is guidance at this point that if you have fever brought on by Covid-19, you should take Paracetamol and not Ibuprofen. Furthermore, if one’s condition deteriorates, and one needs to go the hospital, a Covid-19 diagnosis will – at that stage – require specific treatment.
   2. As is well known, Covid-19 spreads unless very specific measures are taken with respect to self-isolation and quarantining. Consequently, an untested, positive Covid-19 person is not only putting themselves in danger, but also the people around them.

This makes clear that the issue of testing is not simply a “right to health” issue under Article 21, but a core Article 14 issue: a price-based Covid-19 test disproportionately impacts not just individual people who cannot afford it, but the people around them as well. In a situation of lockdown, where travel is effectively forbidden, the implication of this is that the danger is disproportionately served upon low-income clusters of people.

It should therefore be clear that the only possible alternative is State-funded free Covid-19 testing, subject to ICMR Guidelines on who can be tested, and when. After all, if the State cannot ensure virus testing to those who need it in the middle of a global pandemic, what is the point of a State in the first place – and what is the point of rights if you can’t even get yourself diagnosed in a global pandemic because you can’t afford testing? Seen from this perspective, it should be clear that the Supreme Court’s order was morally, ethically, and constitutionally justified.

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[Disclosure: The author is a former law clerk of one of the judges on the bench, Justice Bhat, when he was a judge of the High Court of Delhi.]

The Constitutional Challenge to the Transgender Act

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

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

The Self-Determination Challenge

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

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

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

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

The Equality Challenge

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

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

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

The Non-Discrimination Challenge

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

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

The Affirmative Action Challenge

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

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

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

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

The Positive Obligations Challenge

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

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

Conclusion 

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

The Citizenship (Amendment) Act Challenge: Three Ideas

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

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

The Evolving Idea of Equality

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

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

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

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

Citizenship Laws and Standards of Review 

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

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

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

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

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

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

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

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

Conclusion 

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

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