Guest Post: Manifesting Equality – Moving Beyond Percentages for Disability Law

[This is a guest post by Aakash Dwivedi. The author would like to thank Kanishk Pandey for his guidance and advice.]

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Introduction

On 16th October 2023, the Supreme Court (‘SC’) delivered its decision in Mohamed Ibrahim v Managing Director, highlighting the constraints inherent within the Rights of Persons with Disabilities Act, 2016 (‘the Act’ or ‘RPWD’). 

The case calls into question the standards of eligibility propounded by the statute – specifically, section 2 (r), which creates a threshold of 40% of a ‘specified disability’. As per the section, to qualify as a ‘Person with Benchmark Disabilities’ (‘PwBD’), the individual must have a disability to the extent of 40% or more. The fulfilment of such criteria is a condition precedent to gaining access to many rights and benefits under the statute. It thus forms the fulcrum on the basis of which rights are granted, and denied, to beneficiaries.

The case reflects the plight of persons with disabilities (‘PwDs’) who fail to meet this threshold i.e., persons who are disabled as per the act’s definition, but do not qualify the 40% criteria, and as a result, are not protected by the act’s provisions. The court in its critique calls into the question the effectiveness of the provision in protecting stakeholders. It contemplates whether this threshold is conducive to the achievement of the stated objectives of the act, or merely a barrier to the same.

Justice Ravindra Bhat authored the opinion and retired from the bench four days later. It is fitting that through his last case, Justice Bhat has articulated with some finality the inadequacies of disability rights in India. He has been a torchbearer for the rhetoric and demand of inclusiveness in disability rights in India. His critique of an indiscriminate 40% threshold assumes great importance in this case, and has received a concrete articulation through Mohamed Ibrahim.

Aside from Justice Bhat’s remarks, the absence of a broader judicial (and non-judicial) discourse surrounding the inadequacies of disability rights frameworks in India has led to a consistent denial of rights to PwDs. This is evident from the abundance of RPwD litigation as seen in Vikas Kumar, Avni Prakash, and finally Mohamed Ibrahim. Although scholars have periodically engaged in a critical review of the act, such engagement has largely been limited to enforcement mechanisms, lack of public awareness or implications for persons with mental illnesses (See here, here, and here).

There is a clear lacuna in literature examining the eligibility criteria espoused by the act, and dissent has largely been limited to the courtroom. Thus, I attempt to engage in a policy analysis of the act in an effort to identify the root of recent grievances. I claim that section 2(r) is first, underinclusive in nature, and secondly, is manifestly arbitrary and therefore, is ultra vires to the Right to Equality under Article 14 and must be amended.

Unpacking Under-inclusiveness

In this section, I argue that Section 2 (r) is under-inclusive in nature. To do so, I rely on the definition laid down in Ambica Mills, I further demonstrate the provision’s under-inclusiveness through Mohamed Ibrahim and Vikash Kumar.

In order to determine whether Section 2(r) is under-inclusive, it is first necessary to articulate the contours of this determination. What does it mean to say that a rule is under-inclusive? And how do we determine the same? In State of Gujarat v Ambica Mills, a seven-judge bench of the SC provided a clear definition of under-inclusiveness as ‘when the State benefits persons in a manner that furthers a legitimate purpose, but does not confer the same benefit on others who are similarly situated.’ Hence, it is required for us to determine if (a) a benefit is being conferred by the state, (b) in pursuit of a legitimate purpose, and (c) whether such benefit is extended to all similarly situated persons. I argue that although the act bestows benefits and privileges onto PwDs, for a legitimate purpose, it does not extend its benefits uniformly onto all similarly situated persons.

In Chapters VI and VII, the act promulgates numerous provisions for the benefit of PwBDs, including, but not limited to, reservations for employment and education. The act is hence reflective of the state’s recognition of the necessity of affirmative action in order to alleviate barriers encountered by PwDs. It hence (a) extends benefits (b) in pursuit of a legitimate objective. Does it extend these benefits to all similarly situated persons? Through Section 2(r), the act excludes all PwDs who do not meet the 40% threshold, from the benefits set out under Chapter VI. Irrespective of how similar their disability is to those who are eligible. It hence distributes benefits in an irregular, and non-uniform manner. However, does such distribution lead to an exclusion of similarly situatedpersons? I argue that it does. This is easily demonstrable.

In Mohamed Ibrahim, the appellant, who suffers from defective vision, applied for a position in a government establishment. The government rejected the application on the basis of the appellant’s ‘disability’ and refused to accommodate the appellant under the provision for reservation enshrined in the act. Such refusal was premised on the fact that the appellant failed to meet the criteria set out under Section 2 (r). The court recognised that the appellant, for all practical purposes, suffers from a disability and encounters barriers similar to those who meet the threshold, and is thus similarly situated. Nevertheless, he is exempted from Chapter VI benefits and safeguards, due to failure to meet the threshold of 2(r). Justice Bhat observed that the act hence extends benefits to one class of people, at the expense and exclusion of another.

The SC has also previously recognised the exclusionary nature of Section 2(r)’s design in Vikash Kumar v UPSC. Here, the court examined a grievance analogous to Mohamed Ibrahim. The appellant, a PwD as per the act’s definition, was denied a scribe while appearing for an examination. The refusal was, again, premised on the contention that the appellant failed to meet the 40% threshold. Relying on the principle of equality laid down in E.P Royappa, the court observed that the right to equality requires the law to apply equally to similarly situated persons. In cognizance of this, it quashed the order of the examination-authority, and mandated that the appellant be accommodated despite his non-status as a PwBD. The court recognised that the application of sec. 2(r) leads to an unreasonably narrow extension of the Act’s benefits by precluding other similarly situated individuals, such as Vikash Kumar and Mohamed Ibrahim.

In conclusion, although the statute meets the first two prongs of the Ambica Mills test, it fails to fulfil the third, by virtue of its exclusion of other similarly situated persons. Therefore, I submit that Section 2 (r) is under-inclusive in nature.

2(r): Arbitrary Equilibria

I organise the following section in two parts. First, I examine whether a ground for review exists under Article 14 for under-inclusive laws. I strive to discern (a) the substance of such review, and (b) the form that it may take. Secondly, I apply the test of manifest arbitrariness as envisaged in Shayara Bano.

Having argued that the impugned section is under-inclusive in nature, one might contend that mere under-inclusiveness does not constitute grounds for challenge. It is true that historically, courts have tolerated, with deference to the legislature, both under & over-inclusive classifications. However, it must be noted that such tolerance stems from the rights that legislation relates to, and not the degree of inclusiveness of the legislation itself (See here and here). In other words, deference and judicial constraint are exercised when statutes fall under the domain of legislative expertise. However, when legislation relates to the individual’s constitutional rights, a stricter standard of review is adopted. Presently, the under-inclusive nature of the provision interferes with the PwD’s right to equal protection by the law. Thus, judicial review is warranted.

It is now important to determine the substance of such a review. How may a ground for review be articulated in light of Article 14 jurisprudence? In E.P Royappa, the SC established that the guarantee of equality imposes a positive duty on the state to apply the law equally to all similarly situated persons. The court further clarified that Article 14 exists as a safeguard against arbitrary state action, postulating that arbitrariness is antithetical to equality. As a corollary to my arguments in the first section, I claim that by excluding other similarly situated persons from the benefits of the act, Section 2 (r) is arbitrary in nature and breaches the right to equality.

To determine whether Section 2(r) is arbitrary in nature, I rely on the doctrine of Manifest Arbitrariness as propounded by Shayara Bano. The court defines the doctrine as follows: ‘Manifest arbitrariness, must be something done by the legislature capriciously, irrationally or without adequate determining principle. Also, something which is excessive and disproportionate’. Although this definition provides the contours of the doctrine’s application, it does not provide a tangible framework with which one may test legislation. Therefore, in order to test Section 2(r) methodically on the touchstone of the doctrine of manifest arbitrariness, I rely on existing literature.

Through a doctrinal analysis of Shayara Bano and subsequent cases that successfully apply the doctrine, Vasu Aggarwal discerns a four-step test that articulates the doctrine in applicable terms (Aggarwal pg. 9). The four steps are as follows:

1. Whether the provision is a rule or standard? (Doctrine applies only to the former)
2. Whether the rule is under/over-inclusive?
3. Whether there are any socially undesirable results as a consequence of the rule? Whether there are conflicting socially desirable results?
4. Reconciling the socially undesirable and desirable results of the rule (If any).

It must be noted that the scholar’s test is not external to the doctrine. It is an articulation of the pattern in which the doctrine has been applied by courts. For example, one may look at Navtej Singh, wherein the Supreme Court applied the doctrine in the form of a four part test to read down Section 377 of the IPC. The court, first, recognised that Section 377 operates in the form of a rule, and not a standard, insofar as the section is given content at the legislative stage. Secondly, the court held that by criminalising even consensual intercourse, the section is over-inclusive. Thirdly, the court highlighted an undesirable result, wherein the section robs the individual of their agency of choice. Fourthly, it balanced this undesirable result with the ‘socially desirable’ result of protecting social morality. In its balancing act it found that the force of the former prevails. It thereby found the provision against same-sex relations to be manifestly arbitrary.

Such a pattern is recognisable in manifest arbitrariness litigation that followed Shayara Bano (Aggarwal Pg. 10). Thus, I argue that this test qualifies the form and substance of the manifest arbitrariness doctrine. The above demonstration also illuminates how the test will be applied in this essay.

APPLYING THE DOCTRINE

1. Rule v/s Standards

In order to determine whether Section 2(r) constitutes a rule, I rely on Twining & Miers‘ construction of a rule. They write that a rule is one which determines that ‘In circumstances X, to persons in class Y, Z takes place’. The structure propounded by Twining & Miers is identifiable in 2(r); In circumstances where the person has a ‘specified disability’ (X) and is in the class of PwDs with a disability of 40% (Y), they are a person with ‘Benchmark disability’ (Z).

Moreover, 2(r) provides an ex-ante determination of the provisions application. This is in contrast to a standard, which would have allowed for determination of benchmark disability at an adjudicatory stage, on the basis of a flexible threshold (for ex: disability to a ‘reasonable extent’). The use of an unchanging threshold, in place of a flexible standard, distinguishes 2(r) as a rule.

I therefore submit that 2(r) is a rule, and the first prong is met.

2. Under-inclusiveness

The importance of determining under-inclusiveness arises because courts, through the exercise of this doctrine, employ a strictly corrective approach. They strive to remedy grievances arising due to ‘excessive or disproportionate’ laws, rather than occupying a legislative role through the promulgation of new standards or rules.

In the previous section I have already argued that the provision is under-inclusive because it does not uniformly benefit all similarly situated persons. Therefore, this prong is also met.

3. Whether there exist any socially undesirable results:

In this step, the doctrine contemplates the actual social consequences of the provision.

It is evident from the previous section that the under-inclusiveness of Section 2(r) has detrimental consequences for many PwDs. It precludes them from accessing the affirmative action benefits set out under Chapter VI of the act. Thus, it acts as a constraint on their social integration and material development. Furthermore, the scheme of administrative and educational affirmative action for PwDs in India is tailored around Sec. 2(r), as reflected in Vikash Kumar and Mohamed Ibrahim. Hence, it creates a constant need to litigate in order to claim one’s rights.

The next question that arises is whether there are any conflictingsocially desirable results of the provision. It is indisputable that Section 2(r) creates immense benefits for PwDs, although not all of them. It is not my argument that these benefits be done away with altogether, rather that corrective measures are necessary to enhance the provision’s efficacy.

4. Balancing

In pursuance of its corrective approach, the doctrine seeks to balance socially undesirable and desirable results, if any.

In the given case, I argue that a balancing and reconciliation of the desirable and undesirable results of the law is wholly possible. Courts may hold the provision to be manifestly arbitrary. Subsequently, they may read down the 40% requirement, to make the provision more inclusive, while at the same time not disturbing the socially desirable results of the law.

Courts have previously employed manifest arbitrariness in order to make provisions more inclusive, by remedying their disproportionate nature, without necessarily striking them down.

CONCLUSION

In this blog, I critically examine Section 2(r) of the RPwD, highlighting its under-inclusive nature. I subsequently use the manifest arbitrariness doctrine to demonstrate that such under-inclusiveness is contrary to the constitutional guarantee of equality.

I must clarify that the metric of under-inclusiveness, as well the application of the doctrine are mere heuristics, with which we may understand the legal barriers encountered by PwDs. The broader aim of this blog is to further Indian legal discourse on PwD rights. It seeks to advocate for inclusive and fair laws that protect their interests, irrespective of the extent of their impairment.

The development of such an alternative framework is a separate analysis in of itself. I constrain myself from addressing the same extensively here. Nevertheless, I believe there could be two possible options.

First, courts, or the legislature, read down the 40% criteria to a lower threshold. This would expand the ambit of 2(r). However, courts and legislators will then have to determine what threshold would be perfectly inclusive: is it 10, 20, or 30%? Such a consideration is unavoidable, due to the fact that any ex-ante threshold cannot anticipate all possible grievances and is thus bound to be arbitrary. The converse, which is scrapping the threshold requirement altogether, would make the provision over-inclusive. It would render Chapter VI a dead letter due to impracticability of enforcement. Therefore, this option is not feasible.

The alternative consists of developing a flexible standard, as contemplated by Justice Bhat. In a diaspora with millions of PwDs, anticipating thresholds that are adequately inclusive is a burdensome task. Hence, individual determinations balance the legislature’s lack of perfect knowledge, by allowing application at the adjudicatory stage. A qualitative, rather than a quantitative, standard would prove to be more effective in protecting potential beneficiaries. A qualitative standard here refers to consideration of the barriers and constraints encountered as a result of disability, and not the extent of the disability itself.

The development of an alternative standard is a pertinent question that deserves answering. I can only hope that the end of this essay may be the beginning of a richer discourse on disability rights in India. Is it time to move beyond percentages as a metric of disability and impairment?

The Supreme Court’s Marriage Equality Judgment – III: Judicial Creativity and Justice Kaul’s Dissenting Opinion [Guest Post]

[This is a guest post by Masoom Sanyal.]

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Introduction

The Supreme Court has handed down its verdict in Supriyo @ Supriya Chakraborty v. Union of India (‘Supriyo’) or the Marriage Equality Case. By a majority of 3:2, the Court has held that (i) there is no unqualified fundamental right to marry under the Indian Constitution, (ii) there is no right to civil union available to unmarried couples, (iii) the Special Marriage Act (‘SMA’) is not violative of any fundamental rights, and (iv) the SMA cannot be read in a gender-neutral manner, in a way that would allow queer couples to marry under its provisions. The right to adoption has also been denied to unmarried couples by the Court. A unanimous Court has, however, held that transgender and intersex persons may marry under the SMA, so long as such a marriage is heterosexual.

Justices S Ravindra Bhat, Hima Kohli, and P S Narsimha wrote the opinion for the majority. Chief Justice Chandrachud and Justice S K Kaul wrote the minority opinions. Interestingly, Justice Kaul is the only justice on the bench who finds the Special Marriage Act violative of Article 14 of the Constitution. However, he does not strike it down; instead, by exercising an unprecedented form of ‘judicial creativity’ he makes it workable in line with the fundamental rights. This article analyses Justice Kaul’s judgement and the creative approach he has employed in order to remedy the defect of ‘unconstitutionality’ of the Special Marriage Act. There are 2 remarkable aspects of the judgement: (i) determination of legitimacy of the aim of the statute; and (ii) extending the statute’s operation to a distinct class of people by employing a creative approach.

The Unconstitutionality of the SMA: Illegitimate Objective

The test of reasonable classification under Article 14 is a two-pronged test: (i) the classification made must be based on an intelligible differentia, i.e. there must be a clear and intelligible difference between the classes, and (ii) the classification must have a reasonable nexus to the objective sought to be achieved by the statute.

Justice Kaul notes that the SMA creates two distinct and intelligible classes of people, by implication: the first class is that of heterosexual partners who are eligible to get married under the Act, while the second class is that of non-heterosexual individuals who are ineligible to marry under the Act. After referring to the scope and object of the Act, Justice Kaul observes that it postulates a ‘special form of marriage’ available to any person in India, irrespective of faith. In Justice Kaul’s opinion, the intent of the SMA was not to regulate marriages on the basis of sexual orientation. (In fact, doing so would be violative of Article 15 as well, since, per Justices Kaul and Chandrachud’s understanding, ‘sex’ in Article 15 includes ‘sexual orientation’. The Majority’s opinion does not appear to have addressed this point at all.)

In Justice Kaul’s mind, if the object of the statute is to facilitate inter-faith marriages, a classification based on sexual orientation of individuals can have no rational nexus with it. Further, if the objective is to regulate only heterosexual marriages, Justice Kaul holds that such an objective cannot be a ‘legitimate state objective’ on the ground that it would be violative of Article 15, which includes discrimination on the basis of ‘sexual orientation’ as well. Justice Kaul, in no unclear terms, declares the SMA unconstitutional and violative of Article 14 (Para 16). Here is the first unusual aspect of the judgement. Generally, Courts are reluctant to question the state’s aim in enacting a statute; usually, only two questions are looked into when satisfying the two-pronged test of reasonable classification under Article 14, as noted above: first, whether there is an intelligible differentia; and second, whether it has a rational nexus with the aim of the legislation. It is rare, even for a Constitutional Court, to venture into the arena of holding the aim of the legislation itself illegitimate.

However, he then takes a curious and intriguing turn. A prayer of the petitioners was that instead of striking down the SMA as unconstitutional, the Court must read it in a harmonious manner, and provide a gender-neutral reading of the Act, in order to include non-heterosexual partners within the ambit of the law. Justice Kaul notes that “there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships.” (Para 17)

In short, a gender-neutral reading of the Act is not possible since the legislature has used clear and unambiguous words. According to Chief Justice Chandrachud’s opinion, such substantial reading would be beyond the powers of a Constitutional Court, and if the Court carried out such an exercise, it would invariably venture into the legislative domain, thereby violating the doctrine of separation of powers. Justice Kaul concurred with the Chief Justice on that point.

Judicial Creativity: Extending the SMA to Same-Sex Couples

However, Justice Kaul, in Para 18 of his judgement, lays down a curious position of law. He writes, “[I]t would not be prudent to suspend or strike down the SMA, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non-heterosexual partners to enter into a civil union, as opposed to striking down provisions of the SMA, ought to be considered as necessarily exceptional in nature.”

Chief Justice Chandrachud and Justice Kaul’s minority opinion lays down that non-heterosexual couples have a fundamental right to civil union that the state is under a duty to recognize. In line with that, Justice Kaul employs a creative interpretive technique, for which he cites the South African Constitution which contains an explicit provision that all statutes must be interpreted in ‘due regard to the spirit, purport and objects’ of the chapter on fundamental rights. Justice Kaul argues that we, in India, must adopt a similar approach to statutory interpretation.

By applying this technique of statutory interpretation, Justice Kaul observes, “In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable.” (Para 26) Therefore, Justice Kaul’s judgement has the effect of stretching the ‘bouquet of rights’ available to married couples to the non-heterosexual civil unions. The remarkable part about this judgement is that a rather rare approach is taken here, by using a principle of statutory interpretation that finds an explicit mention in the South African Constitution, and importing it into Indian jurisdiction.

Conclusion

Justice Kaul’s judgement, albeit a dissenting opinion, is remarkable. It grants the recognition to non-heterosexual civil unions as well as extends to such civil unions all applicable rights that are available to married couples. It holds the SMA’s application only to heterosexual couples as violative of test of reasonable classification under Article 14 of the Constitution. He ventures into the area of determining the legitimacy of the aim and objective of a statute itself. Further, instead of striking down the statute, he remedies the constitutional violation by introducing a creative technique of statutory interpretation that he imports from South African constitutional principles. It is submitted that this technique of statutory interpretation should gain more currency in the Indian context. There has been some debate around this approach. A question that has been asked is whether such judicial creativity should be permissible? In other words, how much judicial creativity is too much judicial creativity? It is submitted that judicial creativity, so long as it is in order to protect fundamental rights and the Constitution, and within the scope of the judicial role, should be encouraged.

The Supreme Court’s Marriage Equality Judgment – II: “Do I Contradict Myself?” [Guest Post]

[This is a guest post by Masoom Sanyal.]

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Introduction

Earlier this month, the Supreme Court delivered the much-awaited verdict in the case of Supriyo @ Supriya Chakraborty v. Union of India (“the Marriage Equality Case”). The Supreme Court has unanimously refused to recognize that non-heterosexual individuals have a fundamental right to marry. A total of 4 different opinions were delivered by Chief Justice Chandrachud, Justice Kaul, Justice Bhat, and Justice Narsimha, respectively. Justice Kohli agreed with Justice Bhat’s opinion. Together, Justices Bhat, Kohli, and Narsimha’s opinion forms the majority opinion, holding that there exists no fundamental right to marry (per Justice Narsimha, it is a freedom, not a right); in their opinion, nor is there a right to a Civil Union comparable to a marriage, under Article 19 and Article 21 of the Constitution. The Minority Opinion, comprising of Chief Justice Chandrachud and Justice Kaul, recognized the right to civil union inherent in Article 19, Article 21 and, surprisingly, also Article 25 (per Chief Justice Chandrachud).

The petitioners had challenged the constitutionality of Special Marriage Act (‘SMA’) as violative of Right to Equality insofar as it allowed only heterosexual couples to marry and excluded non-hetersexual couples. On that aspect, a majority of 4:1 has held the SMA as constitutionally valid. Justice Kaul, however, has held it to be violative of Article 14. Interestingly, Justice Bhat, too, in his Majority Opinion notes at multiple instances the discrimination accorded to the LGBTQ+ Community, but shirks away from the constitutional duty to remedy it, instead delegating it to the “High-Powered Committee” that the Executive has promised to constitute. Justice Kaul, too, does not strike down the SMA on the ground of it being a ‘beneficial legislation’ used by many heterosexual couples to get married. In this article, I critique the judgement of Justice Bhat, insofar as it finds discrimination against non-heterosexual individuals but stop short of remedying it. I argue that having found that discrimination exists, there is a constitutional duty upon the Court to remedy discrimination; there is absolutely no scope for exercise of slightest discretion with a Constitutional Court once it finds violation of fundamental rights and fundamental constitutional values.

An Analysis of Justice Bhat’s Judgement for the Majority

The Court was univocal on the aspect of a fundamental right to marry. Justice Bhat, writing for the majority, held that a right to marry does not automatically flow from the provisions of Part III of the Constitution, as the petitioners sought to assert (Para 50 of Justice Bhat’s Judgement). There is a unanimity between the judges on the point that the constitution does not expressly recognize a right to marry. The Court has refused to read into the provisions of Article 21 (or any other Articles) an unenumerated fundamental right to marry. Justice Bhat, however, disagrees on the point of there existing a fundamental right to a civil union (which Justices Chandrachud and Kaul recognised). Justice Bhat instead recognizes what he calls a ‘right to relationship’ within Article 21, which, in his mind, is different from a right to civil union. The difference, according to Justice Bhat, is that there exists a right to relationship, but there is no positive obligation upon the state to recognize such a relationship. State recognition is an aspect of the right to civil union, as the minority understands it. Justice Bhat disagrees with “the conclusion that all persons… have an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an obligation to recognize…”

On the challenge to the SMA, on the ground that it excludes non-heterosexual couples from its ambit and makes a heteronormative classification and is therefore discriminatory, Justice Bhat, after explaining the Test of Reasonable Classification, notes that “under classification” is not per se discriminatory. He notes that “exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are subject matter of the law (or policy) belong to the same class (the included class).” He finds that the classification under the SMA does not violative the two-pronged test of reasonable classification. And on the point that the classification has been rendered discriminatory, due to passage of time, and therefore must be “read down” in a manner that has the effect of rendering it non-discriminatory, Justice Bhat finds the petitioners’ argument insubstantial. He holds that the object of the SMA is as valid today as it was when the law was birthed.

An Intriguing Aspect of the Majority’s Judgement: Finding Discrimination But Not Remedying It

There is a particularly intriguing aspect of Justice Bhat’s majority judgement. In Section VI of his opinion, Justice Bhat notes the “discriminatory impact” on queer couples. He analyses a long line of precedent to explain how discrimination can be meted out to a group of people without it being intended. He quotes the judgement in R C Cooper which noted:

“[I]n determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the legislature, nor by the form of the action, but by its direct operation upon the individual’s rights.” (Emphasis supplied)

Justice Bhat notes, in a manner that appears to contradict his own arguments in the previous section of the judgement, that:

The common feature of the “effect of the law and of the action upon the right” in R C Cooper and the decisions which applied the indirect discrimination lens, is that the objects (of the legislation or the policy involved) are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s enquiry. (Emphasis supplied)

He says that although the court had concluded previously that there is no fundamental right to marry, it cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples (sic). He then goes on to return a finding of exclusion and discrimination specifically by saying that the law, insofar as it grants a right to marry and other rights flowing from that right to heterosexual couples but not to non-heterosexual couples, results in the latter’s exclusion. He specifically notes that “[t]he denial of these benefits and inability of the earning partner in a queer relationship, therefore has an adverse discriminatory impact.” (Para 114) He visualises certain specific instances as to how a heterosexual couple would be able to benefit from certain rights which a non-heterosexual couple would be denied (like insurance, provident fund, etc.), and writes, “[t]his injustice and inequity results in discrimination, unless remedial action is taken by the state and central government.” (Para 116) At the end of the section he notes that the Solicitor General had expressed the Union’s position that a High-Powered Committee will be formed to look into rights of non-heterosexual couples.

Here we see a strange abdication of the constitutional duty by the Court. Justice Bhat has found, in his own analysis, that the existing framework indirectly discriminates against non-heterosexual couples. There exists a long line of precedent, including cases like R C Cooper and Navtej Singh Johar, whereby the Court has laid down that it is the operation of the law on the individual and not the object that has to be seen when determining the violation of fundamental rights. Justice Bhat returns a finding of clear discriminatory impact on queer couples; but then, in an exercise of judicial abstention, refuses to remedy it. Instead, he sends the ball back in the Executive’s Court by asking the promised High-Powered Committee to look into the matter. This, it is submitted, is incorrect: there is no exception that allows the Court to excuse itself from the constitutional duty to remedy a wrong that it itself had found.

Conclusion

The Majority’s judgement has an inherent and tragic contradiction, coupled with an approach that may well amount to abdication of a constitutional duty. The Court makes explicit findings of discrimination against members of the queer community, caused by the lucanae within existing legal framework (a phenomenon that the courts have previously recognized and termed ‘indirect discrimination’; a long line of precedent has also established that the constitutional court has a duty to remedy indirect discrimination). The Court returns a finding of indirect discrimination against the members of the LGBTQ+ community, but, tragically, footballs the duty to remedy it to a Centre-appointed High-Powered Committee. The Majority’s opinion thus contradicts itself in a tragic way, and in the process, abdicates the constitutional duty of a Court to remedy a wrong.

Guest Post: Constitutionality of Uniform Taxation of Online Real Money Gaming in the light of the Gameskraft Case

[This is a guest post by Diya Jaimon and Adrija Sengupta.]

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The Karnataka High Court, in the recent case of Gameskraft Technologies Private Limited vs Directorate General of Goods Services Tax Intelligence, laid down the differences between a game of skill (rummy, in this case) and gambling in the online sector for taxation purposes. This judgment has been hailed by the gaming industry as a move that would reduce the frequent misclassification of online real-money games of skill and betting/gambling.

The judgment draws its relevance from two factors; firstly, it resolved the ambiguous nature of online games of skill and chance for the purpose of taxation along with providing a comprehensive analysis of the skill vs. chance jurisprudence in India. It reiterates the protection provided to games of skill as legitimate business activities. Secondly, the May 2023 judgment arrived against the backdrop of the report of the Group of Ministers on Taxation on Casinos, Race Horses, and Online Gaming wherein a uniform tax level of 28% on all online real money games was proposed. The proposal bore fruition in the 50^th GST Council Meeting, held in July 2023.

This essay does not aim to venture into the intricacies of the taxation mechanism proposed by the GST Council. Rather, it discusses the possible violation of the equality doctrine that arises in the classification for the purposes of taxation that the Council has made in light of the fundamental differences between games of skill and chance as well as the inadequate reasoning provided by the council.

The Court’s Ruling in Gameskraft

The case in point relates to tax notices served to GTPL, which is a provider of online platforms that facilitate players to play games of skill, like ‘rummy’, online. GTPL was served tax notices running up to Rs. 21,000 crore, and was charged with tax evasion by the Directorate General of Goods and Services Tax Intelligence (DGGSTI). The allegation against GTPL was that it was involved in ‘betting and gambling’ practices which are classified as an ‘actionable claim’ and not a ‘service’. Hence, the tax payable becomes significantly higher, as now, along with the platform fees, the amount staked by the players into the game becomes taxable. Incorporated in 2017, and registered under the CGST Act and the IGST Act, GTPL contented that they had duly filed all their GST returns up to June 2022, the taxable portion being only platform fees.

The main issue that therefore arose was whether games like rummy, which are preponderantly skill based played either online or offline amount to “gambling or betting” when played with/without stakes under Entry 6 of Schedule III of the GST Act. If they were to be classified as ‘betting and gambling’, GTPL would be liable to pay taxes on both the platform fees and the amount staked by individual players. The contention that primarily arose was how to differentiate between a game of skill and a game of chance (Betting/Gambling) in the online sphere.

The court answered the same by employing previous jurisprudence on the matter and validating the effectiveness of the ‘predominance test’ in the online sphere. The predominance test requires the court to decide whether chance or skill is the ‘dominating factor’ in a particular game. If it is held to be skill, the court would hold the game to be a game of skill and vice versa, in cases of chance. Cases like RMD Chamarbaugwala, which laid down the preponderance test, were referred to. The Court also examined the ad-hoc nature of deciding the nature of a game as either skill/or chance based on the jurisprudence evolved in the K. Satyanarayana case.

While the respondents put up a strong argument in favor of online rummy being treated as ‘gambling/betting’, the Karnataka High Court judgment of AIGF v State of Karnataka was used to hold that it wasn’t the case. The predominance test still would be applicable in the online sphere, and each game had to be taken up on an ad hoc basis to ultimately come to the conclusion as to whether it was a game of skill or chance. The court in Gameskraft adopted the views upheld in AIGF and reiterated the applicability of the predominance test in the determination of the nature of the game even in the online forum, and quashed the tax notices against the platform, due to ‘rummy’ being adjudged as a game of skill and hence, only GST on platform fees being applicable.

The judgment, however, is slated to be contested as the Union Finance Ministry has filed a Special Leave Petition in the Supreme Court for overruling the same after its decision in the 50th GST Council Meeting. The council meeting, which deliberated on the 2021 GoM Report, regarding Taxation on Casinos, Race Horses, and Online Gaming, decided on a 28% taxation on face value for all forms of online gaming; without any differentiation between skill-based gaming and betting/gambling.

Uniform Taxation and Article 14 Violations

In the matters of taxation, the Supreme Court has provided larger latitude to the legislature, with regard to rates and classification of taxes; and refused to interfere in the same unless it is found to be unreasonable. Neither does the probability of the unequal burden of taxation on a certain category in itself justify an Article 14 violation claim. However, that being said, even in matters of taxation, the test of Article 14 must be fulfilled “reasonable classification.” The equal protection clause in the Constitution does not imply the absence of any classification. It just prescribes the application of the same law to all similarly situated and equal treatment in equal circumstances

Certain criteria for a classification to be permissible have been laid down, such as the test of intelligible differentia and rational nexus. In the first criterion, objects and persons that are grouped together must be distinguished from those that are left out of the group. This implies the commonality of objects that have been classified together. The commonality provided by the GST Council is the classification of all online real money gaming as betting/gambling and the associated ‘adverse impacts on society’. This is a fundamentally flawed classification as the courts have, on many instances, differentiated the nature of games of skill and chance and provided protection under Article 19(1)(g) from games of skill. Moreover, the courts have held that games of skill, when played with stakes cannot be called betting or gambling since any occupation, trade or business necessarily involves an element of earning money to sustain one’s livelihood and for profit.

In RMDC-I, the court highlighted that “trade and commerce,” as defined by Article 19(1)(g) and Article 301 of the Constitution are the only activities that can be considered authorized trading activities, and that gambling is res extra commercial. Similarly, in RMDC-2, the apex court highlighted that games of chance do not enjoy constitutional protection, however, “games of skill by their very nature stand on a different footing”. Therefore, games of skill, which are eligible to be protected under Article 19(1)(g) of the Constitution have been put at par with betting/gambling for the purpose of taxation, disregarding their normative differences.

Therefore, the violation of the equality clause rises with regards to the flat rate of 28% taxation being imposed on both games of skill as well as chance, without taking into account other rational considerations such as firstly, the constitutional protection granted to games of skill as legitimate trade under Article 19 and the exclusion of betting/gambling from the same, and secondly, the fundamental differences in the nature of the two as laid down in multiple judicial pronouncements. This results in discriminatory treatment under Article 14 as the GST Council has, in substance, treated unequals equally and in this situation, the refusal to create a rational classification may in itself be, the denial of equality.

The taxation of games of skill along with betting/gambling, practically results in their uniform classification for the 28% taxation. The 28% bracket, the highest tax bracket in the GST regime reserved for tobacco substances, revolvers and pistols, lottery, betting, and gambling is considered to be reserved for luxury and sin goods. The classification of online gaming in this category has also been justified by the GST Council as a result of its “adverse impact on society”. However, if one considers the addictive impact of other media forms such as OTT Platforms and social media, as well as non-real-money online games, the argument falls flat, as the same are taxed under the 18% bracket . Even if the comparison argument is set aside, one fails to understand the “adverse impact on society” of online skill-based games such as fantasy sports games, card games, and games that involve an overwhelming amount of skill, such as online chess arising only when it involves real money. Therefore, the GST Council’s classification of all online gaming under the 28% tax bracket lacks sufficient reasoning apart from the correlation of the adverse effect that online betting/gambling may have, on the general populace, with online skill-based gaming. This correlation breaks down in light of settled jurisprudence clearly differentiating the fundamental differences in their characteristics as well as impacts.

Conclusion

“…The defendant has in the past occasionally had a wager on a horse race. Today she has been taking part in another game of chance or skill – the game of litigation...”. One has to wait and analyze the Supreme Court’s take on the Karnataka High Court judgment; a take that may validate or weaken the GST Council’s stance. That being said, along with the decades of jurisprudence that uphold the differences between games of skill and chance, the very real-life implications of the GST Council’s decisions are not to be ignored. If implemented an online gamer will end up paying a whopping 28% of GST on the amount they have deposited. Additionally, they will also have to pay the platform fees and a 30% TDS on net winnings, if any. The implication of this is two-fold – firstly, the gaming industry ends up losing huge amounts of revenue. Secondly, Indian users can simply migrate to illegal platforms to avoid paying high tax rates. Not only will this come as a loss of revenue to the government, but the entire Indian industry will lose its competitive edge it has right now on account of affordable internet rates, to a tax rate that is almost 10% higher than that of most countries.

Guest Post: New Developments in Abortion Jurisprudence

[This is a guest post by Dewangi Sharma and Aditya Gujarathi.]

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(Note: In this article, the authors have referred to the termination of pregnancy and reproductive rights only in reference to ‘women’. This is because the relevant statutes and most judicial decisions have only used the term ‘woman’ in this context and limited the scope of the right to women. However, the authors recognise that the biological reality of pregnancy is a reality for persons other than cis-gendered women, and therefore the conversations around termination of pregnancy need to include all pregnant persons.)

The recent case of XYZ v State of Gujarat, where the Supreme Court allowed a survivor of rape to terminate her pregnancy at 27 weeks 4 days pregnant, is a landmark decision. It is one of the rare cases where termination of pregnancy was ordered at such an advanced stage of pregnancy for a “major” survivor of rape.  What adds to the significance of the judgment is that  there was no  risk to the life of the woman, nor was this a case of foetal abnormality – the usual grounds on which termination has been allowed at such a stage of pregnancy. Unfortunately, the jurisprudential significance of the case was overshadowed by the headlines of the Supreme Court chastising the Gujarat High Court for its judicial impropriety.

Despite this progressive judgment of the Supreme Court, we cannot ignore the travesty of justice that took place in the matter where the High Court of Gujarat dismissed the woman’s petition without providing any reason except the fact that it was an advanced stage pregnancy. This raises a critical question – if women’s bodies cannot be controlled by the State, as has been held by the Supreme Court in various judgments, can they be allowed to be controlled by individual judges? Drawing upon this case, the authors aim to bring to light how various high courts have been denying women the right to terminate their pregnancy by defying well established precedent and undermining their fundamental rights of reproductive freedom and decisional autonomy..

The Scheme of the Medical Termination of Pregnancy Act

Under the scheme of the MTP Act, read with the MTP rules, clear categories and conditions for termination of pregnancy up to the statutory limit of 24 weeks are provided. Up to 20 weeks, termination can be done on the basis of the opinion of one registered medical practitioner and between 20-24 weeks with the opinion of two. For the latter, certain categories have been mentioned in Rule 3B of the MTP Rules which include minors, victims of sexual assault, change in relationship status (divorce or widowhood), disabled women, women in emergency situations and any case of foetal abnormalities. In X v. Principal Secretary, Justice Chandrachud (as he then was) held that “change in relationship status” would also include any material change in circumstances for unmarried women as well, adopting purposive interpretation in light of the fundamental right of reproductive choice of women. It was also held that any distinction between married and unmarried women in matters of pregnancy would be unreasonable. However, the ground reality is that women are still forced to approach the courts to seek permission for terminating pregnancies, even within the statutory limit, especially when they are unmarried and  in cases of rape.

The statute also provides for certain special categories where termination of pregnancy beyond the 24-week limit is permitted:

• in cases of foetal abnormalities that can pose substantial risk to the life of the child, if born (Section 3(2B)), as per the opinion of the Medical Board (Rule 3, MTP Rules);
• If the registered medical practitioner is of the opinion that there is an immediate danger to the life of the woman (Section 5)

This is where the importance of judicial discretion comes in. To overcome the limitations in the Act in favour of their right to reproductive choice, women have been invoking the extraordinary jurisdiction to seek termination on grounds not specifically mentioned in the statute. Since 2016, The Supreme Court and various High Courts have recognised that the right to terminate one’s pregnancy forms part of Article 21 and therefore, courts are empowered to allow termination of pregnancy even beyond the statutory limit to uphold women’s fundamental right to reproductive choice and bodily integrity under Article 21. The Courts have also purposively interpreted “life” under Section 5 to include not just life threatening situations, but also instances where continuation of pregnancy would cause grave injury to the mental or physical health of the woman.These grounds include teenage/unintended pregnancies, rape, change in relationship status, socio-economic conditions, domestic violence, etc.

XYZ v State of Gujarat

In this case, the Petitioner filed a Writ Petition before the Gujarat High Court to terminate her pregnancy on the grounds that she was a survivor of rape on the false pretext of marriage. The Medical Board stated before the High Court that the survivor was 25 weeks 6 days pregnant and such termination posed no threat to her life or future chances of bearing a child. After passing a brief order “taking into [the] record” the opinion of the medical board on 11th August 2023, the High Court listed the matter for hearing after twelve days (23rd August 2023). The matter was then listed and heard on the 17th of August, where the High Court ultimately dismissed the Petition without passing any order. The Petitioner then filed a Special Leave Petition before the Supreme Court which ordered another medical examination of the Petitioner. The Medical Board submitted a similar report and the Supreme Court allowed her to terminate the pregnancy at 27 weeks and 4 days.

Significance of the Judgment

This judgment is critical because it re-affirms the progressive and expansive scope of the right of a woman to terminate her pregnancy, as recognised by the Supreme Court. While doing this, the judgment touched upon some important themes that also resolve certain blind spots in the existing jurisprudence.

Primacy of Decisional Autonomy and Reproductive Choice of the woman under Article 21

In X v Principal Secretary, the Supreme Court unequivocally stated that the woman is the sole decision maker about her body. Furthermore, by categorically approving the judgments of the Bombay High Court where termination of pregnancy was allowed beyond the statutory period on grounds of domestic violence and socio-economic rights, the Supreme Court made it binding upon the High Courts to allow termination beyond 24 weeks on these grounds as they pose a risk to the mental health of the woman. Building on this jurisprudence, in the current case of XYZ v State of Gujarat, by framing the question around whether an unwanted pregnancy can be terminated and not around whether a pregnancy resulting from rape can be terminated at this stage, the Court took a step towards a more expansive scope of the right available to women, which keeps the woman and her choice at the centre of the decision. In a way, the Court also recognises that any unwanted pregnancy would cause a grave injury to the mental health of the woman, and a case of rape would act as a compunding factor. The Court places the right to termination of pregnancy within the ambit of the right to dignity and observes that “the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy”. The Court by observing this in the case of an unwanted pregnancy at such an advanced stage of pregnancy, has read the right in a much broader manner than the statute in its current form envisages.

Immateriality of the age of the survivor in cases of sexual assault/rape

The approach usually adopted by High Court judges in deciding whether or not a case beyond statutory limit is fit for termination has been to literally interpret the MTP Act and rely on earlier decisions where similar circumstances exist. This has resulted in the Courts introducing artificial categories to determine the gravity of the risk to a woman’s mental and physical health. One such category is age. . Since most judgments of the High Courts and Supreme Court where termination has been allowed beyond the statutory limit involved minor victims of rape, an artificial distinction between minor and major had emerged . What this case makes aptly clear is the fact that the decisional autonomy of women is not subject to categories of age, or a comparative analysis of grave injury to mental health of a major and a minor victim of rape. In XYZ v State of Gujarat, the age of the Appellant was not even mentioned in the Order. Contrary to this, the High Court Judge specifically posed the question to the counsel of the Petitioner during the hearing as to whether the victim was a minor or a major before disallowing termination of pregnancy.

Possibility of the foetus being born alive is not a ground to refuse termination

In a catena of judgments, various High Courts and the Supreme Court have allowed termination of pregnancy beyond 27 weeks even when there was a possibility of the foetus being born alive. In XYZ v Union of India, the Bombay High Court laid down guidelines on the procedure to be followed if despite termination procedure the foetus is born alive. In the same case, the Bombay High Court clarified that the interests of a mother are placed on a higher pedestal than the interests of the prospective child. There is absolutely nothing else that can impact the decisional autonomy of the woman, not even if the foetus has the potentiality of being born alive. XYZ v State of Gujarat further strengthens this proposition and leaves no room for doubt for any other interpretation regarding foetal viability. By clearly stating that if the foetus is born, it should be kept in neonatal care and that the State should look towards the child being adopted, the Supreme Court has implied that foetal viability is not a ground for disallowing termination of an unwanted pregnancy.

Inconsistent decisions of the High Courts

Despite the Supreme Court’s increasingly progressive jurisprudence,  various High Courts continue to deny permission for termination of pregnancy  on unreasonable grounds, in violation of the principles laid down by the Supreme Court  (See here for a compilation of such cases). In a few cases where women have approached the court seeking termination on the ground of rape, the Courts have refused permission stating that the medical opinion does not suggest that the pregnancy would injure the woman’s mental or physical health (See here). In another case, the Kerala High Court stated that socio-economic conditions cannot be a ground for termination of pregnancy which is directly in violation of X v. Principal Secretary. In a case before the Aurangabad Bench of the Bombay High Court and the Gujarat High Court, foetal viability was given priority over the reproductive rights of a minor rape victim. In a few cases, the High Courts have entertained petitions for termination of pregnancy within the statutory limit and directed setting up of a Medical Committee (which is not a requirement under the Act) and have also refused permission on improper and extra-statutory grounds. The inconsistent and contradictory understanding of the High Court can be highlighted through these two cases: In one case, Telangana High Court stated that it is settled law that Constitutional Courts can allow termination even beyond the statutory limit taking into consideration the fundamental right of the woman. However, in a case before the Kerala High Court, the Court stated that they are not empowered to allow termination of pregnancy in cases and situations not mentioned in the Statute.

What these cases also suggest is that the jurisprudence has left certain lacunae which until settled, would lead to contradictory and inconsistent decisions continuing. Without clear directions from the Supreme Court clarifying what ‘decisional autonomy’ of a woman means in cases of termination of pregnancy, and how it would interact with concerns around foetal viability and the limitations in the statute, judges will continue to disallow termination on the basis of their personal prejudices, in violation of women’s fundamental rights. 

The reality is that these digressions of the High Courts are not just about the limited understanding of the MTP Act and its evolved jurisprudence, but also about the psycho-social conditioning of the Judges, who still feel it is legitimate for them to control women’s bodies. The National Judicial Academy needs to take cognizance of the judgments of the various High Courts and incorporate the evolution of jurisprudence of Medical Termination of Pregnancy in its Training Curriculum. Furthermore,  the training of Judges has to be through an approach that not only involves the law, but also addresses their psycho-social or patriarchal biases. 

Guest Post: Marriage Equality, Separation of Powers, and the Burden of Inertia

[This is a guest post by Rushil Batra.]

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As the Supreme Court heard the case for recognizing marriage equality earlier this summer, one constant argument by the State related to separation of powers, i.e., that the Parliament is the right forum to adjudicate on social issues like marriage equality. The argument primarily is that the state has a ‘legitimate interest in maintaining a societal equilibrium and ensuring cultural ethos’. Simply put, as was argued by one of the lawyers, “the petitioners may have a valid cause, but not a valid case.”

This essay aims to unpack this argument by using Rosalind Dixon’s framework of responsive judicial review. In doing so, I first explore the current status of the ‘right to marry’ under the Indian Constitution. Second, I argue that given the right to marry exists for heterosexual couples, it is not apt to leave this issue to the ‘wisdom of the parliament’ and the Court should recognize the potential burdens of inertia that exist in that regard. Third, assuming that the Court holds that there exists a fundamental right to marry (as it has previously done), it should, however, understand its own capacity constraints and use the suspended declaration of invalidity as a suitable remedy as opposed to reading in ‘persons/spouse’ in place of gendered language.

The Right to Marry

The primary question that the Court must answer is whether there exists a ‘right to marry’. It is unclear why this was a hotly debated question in the first place. In Hadiya’s case, the Court had held that ‘the right to marry a person of one’s choice is integral to Article 21 of the Constitution’. It is important to note that the word used here is ‘person’ as opposed to a gendered version of the term. Similarly, in Shakti Vahini v Union of India, it has been held that ‘when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution’.

One counter-argument could possibly be that the State has always seen marriage as a union of a man and a woman, and hence the right to marry does not contain the right to marry same-sex partners. However, in NALSA v Union of India, the Supreme Court explicitly held that trans-persons had the right to marry. If the right to marry was limited to persons who were biologically male and female, it is unclear how trans-persons could have the same right (The Transgenders Persons Act, expressly includes people of intersex variations as trans-persons). Hence, it is fair to infer that in recognizing the right to marry in NALSA, the Court also recognised the ‘right to marry’ in a wider sense.

Interestingly, one may not even need to prove the existence of a ‘right’ to marry. Instead, a claim can be made under Article 14 arguing that even if recognition of marriage is a privilege as opposed to a right, even such privilege/largesse by the State cannot be selectively denied to persons based on their sexual orientation. While the possibility of levelling down, i.e., denying the said privilege to all groups would arguably exist, it is highly unlikely that the State would be willing to do away with the institution of marriage itself – especially in the Indian context.

Hence, the Court can (and should) interpret the right to marry in such a way as to include same-sex partners. This is made clearer by a reading of Navtej wherein it was held that members of the LGBTQ community are ‘entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution’.

Burdens of Inertia in LGBTQ Rights

A key argument made by the State is that of separation of powers. It is argued that it is Parliament and not a Court of law, that should be the body that first discusses, debates and finally frames a law in this regard – if it deems fit.

The problem with this argument is what Rosalind Dixon calls the ‘burdens of inertia’ that may exist on particular issues in Parliament. Dixon argues that in deciding whether to entertain claims of hitherto unrecognized rights (assuming that the right to marriage does not exist for same-sex couples), the Court should recognize that every Parliament has priority-based burdens of inertia: that is, due to the time-consuming nature of the legislative process, often there is little time allocated to give priority to rights-based claims made by a small minority, especially if those claims do not have majoritarian support. In doing so Dixon assumes that even if the legislature wants to act in a constitutionally compliant manner, it cannot do so, because of its inherent capacity constraints.

Furthermore, in this case, the LGBTQ+ community has historically been ostracised by the State and almost all possible ‘advancements’ have been court-led. It is also important to remember that this is not an absolutely new right, it is merely an extension of a right already existing with heterosexual couples. As William Eskridge argues, it thus becomes imperative in situations like these for the Court to reverse this burden of inertia and not simply ‘leave it to the wisdom of parliament’.

Judicial Constraints and Suspended Declaration of Invalidity

But how can the Court reverse this burden while being cognizant of its own institutional limits? It has been argued by various scholars (see here, here and here), that the best possible remedy in the given instance may be the suspended declaration of invalidity (‘SDI’) – which is also commonly referred to as the Fourie remedy. In most jurisdictions, wherever courts have recognised marriage equality for same-sex couples, it has mostly been done using the SDI. By this unique remedy, while the Court declares that certain provisions under the current legal regime are unconstitutional, instead of striking them down and thereby creating a possible vacuum, it gives the Parliament an opportunity to cure the defect. Under an SDI, the Court still gives directions for the realization of the right, but suspends its operation for a given time period to allow Parliament to make the impugned provisions constitutionally compliant. In case Parliament fails to do so, the Court’s order comes into effect. Hence, it is also premised on the assumption that Parliament may debate the modalities of how the right is to be effectuated and thereby uphold the separation of powers.

While it has been highlighted that the Indian Supreme Court has in the past used this remedy multiple times in various cases (for instance see here and here), it is important to highlight its particular importance in a case like the one praying for marriage equality. This is because marriage is a bouquet of rights that has social and legal ramifications. Some laws are specifically premised on the power imbalance between men and women in a marriage. For instance, under maintenance law, the assumption is that the wife being unable to maintain herself after marriage may require maintenance. It is unclear how such provisions, which a priori assume a power hierarchy, would be interpreted if the Court decides to read in ‘persons’ for male and female – a proposition argued by various lawyers. Thus, this is an instance wherein recognising the right to marry for same-sex couples would lead to many other rights being automatically extended to them (adoption, guardianship, property rights etc.) Therefore, to avoid confusion and chaos in interpretation, and keeping in mind the actual capacity constraints faced by Courts, the SDI seems to be the most apt remedy.

Conclusion

Hence, it is abundantly clear that the right to marry exists as a fundamental right as part of Article 21. In any event, even if one assumes that the right to marry has not yet been extended to same-sex couples, then the Court should consider extending the same rights to them. Thus, the Court should, as a matter of constitutional duty, recognize the burdens of inertia and seek to reverse those. The best way to do that here would be via an SDI.

Guest Post: Reasonable accommodation of religious beliefs at the workplace – An account from Kenya

[This is a guest post by Joshua Malidzo Nyawa.]

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Until 29 June 2023, the Kenyan judiciary had allowed the religious accommodation flower to bloom in schools and other government entities. However, on 29 June, the doctrine of religious accommodation at the workplace was ripe for discussion. In a groundbreaking decision, the ethos of the Bill of Rights reached the workplace. Justice Manani at the Employment and Labour Relations Court delivered a key message that workplaces are not immune to the constitutional project of transformative equality. Employees do not leave their religious rights at the door while signing an employment contract, and they should not be put to an untenable choice between following their faith and avoiding being sacked from work.

Background to the case: Scoline Anyango Ojung’a vs Healthlink Matcare LTD T/A Nairobi Women’s Hospital

The claimant is a practising Seventh-Day Adventist and observed Saturday as her day of worship. She was employed by the Respondent as a hospital manager until 5 April 2018. In light of her religious beliefs, she asked to be excused from her work on Saturdays. In 2016, she reached an arrangement with the respondent where she would only be working on the first Saturday of the month and commit the rest to her worship. For the Saturdays that she missed, she would compensate by working on Sundays since the hospital operated on Sundays. This arrangement subsisted until 21 February 2018 when the Respondent company was engaged in a budget-making process. The claimant’s branch was required to make adjustments to its proposal and submit its revised budget on 24 February 2018, which was a Saturday (Paras 7-8)

 The claimant worked with her budget committee and made the required adjustments. Since Saturday would be her day of worship, she requested one of her teammates to present the amended budget on her behalf. The claimant further stated that she informed the management of her absence through an official email and followed the email with a text message to a member of the Respondent’s management. However, her request was rejected by the management. She chose to obey her religious faith and did not attend the meeting. Consequently, her employment contract was terminated. The claimant argued that her termination violated her freedom to hold religious beliefs and the right to equality (Paras 9-12)

The Respondent neither disputed that the Claimant was a Seventh-Day Adventist nor the existence of the agreement that they entered into. They contended that the right to worship was not absolute but had to be practised reasonably to accommodate other needs whenever they arise (Para 18).  Further, budget-making is a critical process that could not be delegated to another team member. Second, the claimant was part of the meeting and she did not object to the proposed date (para 23). Third, the claimant did not seek permission to be absent but only sent an email and text stating that she won’t be present. Importantly, the Respondent argued that the claimant was not dismissed because of her religious beliefs:

25. The Respondent’s position is that the decision to terminate the Claimant’s contract was not due to her religious beliefs but her failure to heed work instructions and deliver on her mandate. Therefore, her claim that she was victimized on account of her faith is farfetched and untrue.

Freedom of religion at the centre of the dispute: Rejecting an asinine argument

Although the Respondents argued that the claimant was not dismissed because of her religious beliefs, Justice Manani rejected this outrightly. He held that the claim not stand based on the evidence. Simply, the claimant was dismissed from work because of her quest to exercise her religious belief of worshipping on Saturday. If the claimant had come to work on that Saturday and forfeited her day of worship, she would still be working at the Respondent’s company today. The judge expressed himself as follows

27. Although the Respondent asserts that the dispute between the parties had nothing to do with the Claimant’s religion, the evidence on record demonstrates that this issue was at the heart of their problem. It is true that the decision to terminate the Claimant’s contract arose from her failure to attend the budget meeting of 24th February 2018 and present her branch budget proposal contrary to the Respondent’s expectations. It is also clear from the evidence on record that the reason for the Claimant’s failure to attend the meeting was her religious convictions. As a practicing Seventh Day Adventist, she believed that 24th February 2018, a Saturday, was her day of worship. Therefore, the argument by the Respondent that the Claimant’s religion was not a factor that led to the ultimate separation of the parties is evidently misleading.

Comparatively, a similar obvious lie was made before the South African Labour Appeal Court in TDF where a claimant was dismissed for failure to attend a stock-taking exercise on  Saturday. In rejecting the lie, the Court held

[31] TFD’s contentions are not sustainable. Firstly, the dismissal would not have occurred if Faris had not been an Adventist. Had she not been an Adventist she would have willingly worked on a Saturday. The evidence suggests that her work performance was exemplary in all other respects. It is disingenuous to argue that her non-availability on Saturdays was the reason for her dismissal without having regard to the underlying reason for her non-availability. But for her religion, she could have worked on a Saturday and would not have been dismissed. Her religion was the dominant and proximate reason for her dismissal.

Justice Manani’s finding is commendable. Respondents usually attempt to conceal the real issue in dispute by taking the court through corners; most of the time, human rights arguments are lost. By centring the dispute around the right to exercise religious beliefs, Justice Manani grabbed an opportunity to enforce the Bill of Rights.

Limitation clause

The other argument advanced by the Respondents was that the freedom of religion is not absolute. The respondents were correct on this aspect. Article 32 of the Kenyan constitution provides for the freedom of religion. However, the same does not appear in Article 25 which provides for rights that cannot be limited. Justice Manani however proceeded to make an important point. He held that although the right is not absolute, it must be limited by law and even where there is a law, the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (Paras 30-31). He proceeded to dismiss the authorities relied on by the respondent by noting that the decisions did not consider Article 24, which provides for the limitation clause.  Further, Justice Manani concluded by holding that there was no law permitting the Respondent to limit the employee’s freedom of religion and the Respondent had not shown that such a limitation if it was there, it was reasonable and justifiable in an open and democratic society (para 47).

It can be said that Justice Manani correctly grasped the purpose of the limitation clause under Article 24, which is to create a culture of protection of human rights. Article 24 should not, therefore, be considered mechanically but must be given due weight. Finally, the obligation is on the Respondent to show that the limitation meets the test where a limitation fails the test, it is unconstitutional and a judge has no discretion but a duty to declare so.

Balancing two interests: Business interests vis-à-vis religious beliefs

At the heart of the dispute were two competing interests. While the claimant sought to enjoy her constitutional entitlements, the respondent sought to promote its business interests. In reality, companies hire employees to run their companies in a bid to make profits. Put differently, companies would at any time sacrifice human rights to promote their business interests. This is what the respondent argued in this case. Primarily, the respondent argued that budget making is very important and the claimant should have foregone her day of worship. Justice Manani however was quick to remind them of constitutional dictates. Justice Manani held that the Constitution obligates even private Respondents to respect and protect constitutional rights. He further held that it is for the respondent to balance its business interests with the claimant’s freedom of religion without prejudicing the latter (para 50). This finding is worth celebrating for various reasons.

First, the judge appreciated that the horizontal application of the Bill of Rights is now deeply entrenched in our constitutional architecture. Private entities are bound by the Constitution and are obligated to protect and respect the Bill of Rights. Employers cannot, therefore, run away from the constitutional dictates in their everyday operations.

Second, human rights provisions are permanent provisions and must be interpreted broadly. A human rights provision is not a  ‘minor peripheral’ but it is an important pillar of our constitutional project. This therefore means that business interests must be balanced with human rights, and business interests can only trump human rights where exceptional circumstances are shown to exist.

Third, ours is an all-pervasive Constitution, and the workplace is not an enclave. The effect of the Constitution therefore must be felt everywhere even at the workplace. Workplaces policies, rules and schedules meant to promote business interests must be within the confines of the Constitution. If they violate the Constitution or touch the Bill of Rights, they must be justified by the limitation clause. Simply, business interests cannot devalue the freedom of religion guaranteed by the Constitution.

Reasonable accommodation and undue hardship

Reasonable accommodation requires an acceptance of diversity within a society and none should be coerced into conforming with mainstream opinions, beliefs or way of life. It also requires establishments to go the extra mile to accommodate minorities, even if it means incurring a small difficulty. At the workplace, religious accommodation would require that an employer makes adjustments to the work environment or schedule so that an employer can practice her religion. In the case at hand, accommodation would simply mean that the Respondent would be required to move the employee’s day of work from Saturday to Sunday. She was agreeable to this. Justice Manani, therefore, found that failure to reasonably accommodate the claimant was discriminatory and infringed on the claimant’s freedom of worship.

The fundamental point made by Justice Manani is that it is unconstitutional for an employer to put an employee in the unfortunate situation of having to choose between her freedom of religion and her employment. Most importantly however is the inescapable conclusion that such a situation violates the dignity of the employer. The right to dignity requires employees to voluntarily make a choice rather than deciding by feeling obligated to do so. Such a choice does not respect the self-worth of the employee.

Undue hardship

The decision does not however mean that reasonable accommodation must be pursued at all costs. A respondent would be excused from reasonably accommodating if doing so would lead to undue hardship. The employer can show that reasonable accommodation is not possible because it causes undue hardship if the costs are more than the ordinary business costs. Employers however need to remember that the test is that of proportionality, both horizontally and vertically. A claim of undue hardship must meet the proportionality inquiry. This is the language of the limitation test. It will not be met if the employer mainly mentions a legitimate business rationale.  The test is that ‘it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty’.

Conclusion

The important lesson from this decision is that human rights will be meaningless if they are not enforced by courts in all sectors. The culture of human rights promoted by transformative constitutions requires vigilant judges such as Justice Manani who are ready to remind non-state and “private” agencies of their obligations to respect and promote human rights. Second, business interests must bow to the dictates of the Constitution. Although companies exist to make profits, these profits cannot be made at the cost of stripping employees of their constitutional entitlements. Companies are constitutionally required to reasonably accommodate employees’ religious beliefs at the workplace by not trivializing the rights of minorities.

The Telangana High Court strikes down the Eunuchs Act: Three Salient Features

In a judgment delivered on the 6th of July, a Division Bench of the High Court of Telangana (Bhuyan CJ and Reddy J) struck down the Telangana Eunuchs Act, a colonial law dating back to 1919. The Eunuchs Act defined “eunuchs” as “all persons of the male sex who admit to be impotent or who clearly appear to be impotent on medical inspection.” It further mandated a “Register” for “eunuchs”, and – inter alia – stipulated punishment for “every registered eunuch found in female dress or ornamented in a street or a public place or in any other place with the intention of being seen from a street or public place or who dances or plays music or takes part in any public entertainment in a street or public place.”

It should be clear that the Act belonged to a bygone era, and in that sense, the judgment of the Telangana High Court striking it down is a straightforward one. However, there are, in addition, three features of the judgment that are significant beyond the immediate holding.

First, in a historically informed analysis, the Court noted that the provisions of the Eunuchs Act were almost identical to that of the notorious Criminal Tribes Act of 1871 – indeed, as originally enacted, the Criminal Tribes Act itself had included “eunuchs” within its ambit (para 44). The logic of the Criminal Tribes Act, of course, was to criminalise entire groups and communities of people, stigmatise them by labelling them as genetic or hereditary criminals, and exercise a particularly vicious form of surveillance and control. While the CTA itself was repealed soon after independence, its logic remained prevalent in a whole set of statutes – including beggary law, a few of which were struck down in the late 2010s. The High Court’s express linking of the logic of the Eunuchs Act to the logic of the CTA (paras 45 – 48) is important, as it goes beyond specific provisions, and strikes at the heart of the issue – which is group criminalisation, or the imposition of stigma on the basis of group stereotypes or characteristics. It is good to have a reaffirmation of this principle, and it will be interesting to see if, over time, a jurisprudence of this manner can develop, which can then be used to challenge other, more subtle variations on this theme.

Secondly, there was a government scheme called the Asara Pension Scheme, which was applicable to ten categories of persons (senior citizens, widows, disabled people, weavers, toddy tappers, beedi workers etc.) As part of its judgment, the Court directed that transgender individuals (who included the class of people crudely defined by the Act as “eunuchs”) shared the same characteristics of marginalisation and vulnerability as the other ten categories, and therefore had to be included within the scheme (para 41). This is important, because commonly, under-inclusion is not treated as a ground for a constitutional challenge: recall that this was a significant point of contestation during the hearings of the equal marriage case. In this case, however, in effect, the Court treats the non-inclusion of transgender individuals within a government welfare scheme as raising an equality issue, and remedies it through a direction of inclusion.

Finally, the High Court took cognisance of the fact that in the NALSA judgment, a direction had been made with respect to reservations for the transgender community, which had not yet been implemented, either at the centre of the state level. (para 51) It therefore directed the government (using the directory sense of the word “may”) to “issue necessary Government orders/administrative instructions providing for such reservation to persons belonging to transgender community in respect of admission to educational institutions and in recruitment to public services.” (para 51) This is important: the underlying premise of NALSA was that the substantive equality code under Articles 14-16 carries with it a positive right to affirmative action for groups that have been historically marginalised or discriminated against, in order for substantive equality to be achieved. In other words – as Karan Lahiri has argued – affirmative action is not purely discretionary, but a form of a “power plus duty” – that is, once it is established that a particular group is marginalised or structurally vulnerable, the government has an obligation to take positive measures (including affirmative action) in order to bring about substantive equality. While the reasoning of NALSA has – unfortunately – not been developed further in the nine years since that judgment was delivered, the Telangana HC’s judgment marks an important advance in that direction.

In sum, therefore, the judgment by Justices Bhuyan and Reddy is not merely about getting rid of an outdated act )which it is, and is important in that regard): it is a lot more than that, as it develops still-embryonic ideas of substantive equality under the Constitution in a progressive direction. It remains to be seen whether other courts will travel further down this path, and crystallise this jurisprudence.

The South African Constitutional Court’s Judgment on the Parental Rights of Unmarried Partners

On 29th June 2023, the South African Constitutional Court handed down an interesting judgment in VJV vs Minister of Social Development. The case involved the Section 40 of the Children’s Act of 2005, which – to put it simply – granted the status of parents to married couples who had children via artificial insemination, but had no such provision for unmarried partners. This exclusion of unmarried partners was challenged on the basis that it discriminated on grounds of marital status and sexual orientation. The High Court agreed with the argument on marital status, and its order of invalidity was subsequently confirmed by the Constitutional Court. The Constitutional Court granted a suspended declaration of invalidity: that is, it gave Parliament two years to correct the exclusionary defect in the law. In the meantime, as an interim arrangement, it added the phrase “permanent life partner” to Section 40, and held that should Parliament fail to act within two years, this interim arrangement would become permanent.

The judgment repays close study. First, in its finding on discrimination on grounds of marital status, the Constitutional Court noted that the South African Constitution was meant to be a bridge between an exclusionary past and a future where inclusion and diversity were celebrated. One aspect of inclusion and diversity was to no longer limit constitutional protection simply to “traditional notions of family and parenthood” (paragraph 1). Rather, “the types of arrangements that consenting adults may arrive at in how they organise their relationships and their private lives are intensely personal … the changing nature of the form of such relationships and the need for the law to include those in its recognitive reach are evident.” (paragraph 33) For this reason, there was no constitutionally valid justification for limiting the scope of the Act to married couples only. Notably, the Court did not hold that married and unmarried couples were equivalent in all respects: rather, what it held was that from the perspective of parenthood, what mattered was not the form of the relationship, but the substance. Consequently, in denying parental rights in this context to unmarried partners, “the message that is sent is that, although permanent life partners have made the conscious decision to enter parenthood, such a choice is less respected than the same choice made by married partners … It devalues the applicants’ relationship and impacts their dignity.” (paragraph 47)

Notice that the Constitutional Court was nowhere concerned with the red herring of “under-inclusion”: once it was found that there was unfair discrimination on the basis of marital status, the fact that it was simply “under-inclusion” was not even considered as a defence. And of course, the Court’s strong defence of what Indian jurisprudence refers to as “atypical family arrangements” – and its holding that such atypical arrangements were presumptively entitled to the same extent and enjoyment of rights as marital arrangements – was striking.

Secondly, the Court held that there was also discrimination on grounds of sexual orientation. The reason for this was that unlike other relationships, in the case of lesbian partners, artificial insemination was a necessary procedure if they wished to have a biologically related child. In other words:

… it is biologically impossible for two females to reproduce coitally.  They are entirely reliant on artificial fertilisation processes and, by implication, section 40 of the Children’s Act, to realise their dream of becoming parents to their biological children.  Two men in a same-sex partnership would not rely on section 40 of the Children’s Act for the conception of their biological child, as neither man would be capable of being artificially fertilised. Lesbian permanent life partners, who seek to have biologically related children, have no other alternative but artificial fertilisation.  The automatic assignment of their rights and responsibilities would accordingly, purely on the basis of their biological reproductive constraints, be exclusively governed by the impugned provisions.  Lesbian permanent life partners are therefore disproportionately affected by the differentiation occasioned by the impugned provisions. (paragraph 52)

The Court therefore found that while Section 40 was facially neutral, it had a disproportionate impact on lesbian partners, and therefore constituted indirect discrimination on grounds of sexual orientation.

Reading this analysis, one is struck by the difference between the South African Constitutional Court’s analysis, and the recent hearings before the Indian Supreme Court in the equal marriage case.* In the equal marriage case, the Indian Supreme Court, during oral arguments, the Supreme Court signalled that it would not adjudicated the validity of the thirty-day notice period under the Special Marriage Act, on the basis that it affected all couples, and not just queer couples. However, what the Court did not take into account was that after its own injunction that it would only consider the legalisation of same-sex marriages under the SMA, the only legal recourse open to queer couples was that law (along with its notice period). As in VJV, where the Children’s Act was facially neutral, but the facts were such that it was only lesbian partners who were necessarily required to go through the artificial insemination procedures, in the equal marriage case, the SMA’s notice provision was facially neutral with respect to whom it applied to, but because of a court-created reality, it would only be queer couples who would necessarily be required to take recourse to its provisions. One wishes that the South African Constitutional Court’s more generous understanding of discrimination had also been adopted by the Indian Supreme Court; perhaps it still might be.

Finally, of course, there is the remedy. The suspended declaration of invalidity is one of the striking features of South African constitutional jurisprudence. In essence, it sets up a dialogic process where the Court engages in rewriting a statute to cure invalidity, but leaves it open to Parliament to have the final say on how, exactly, the legislative solution will be crafted. The Court’s rewriting is to take permanent effect only if Parliament refuses to act, and the option then is between striking down and rewriting. This dialogic process thus allows the Court to go further than Courts normally do, and actually engage in some degree of legislative surgery, as – ultimately – it is not usurping Parliament’s role, but giving Parliament an opportunity to platy its role and amend the law in a constitution-compliant manner. In this case, the remedy involved writing in the words “permanent life partner” into the statute.

VJV vs Minister for Social Development is thus another landmark in South Africa’s rich and substantive jurisprudence of equality, non-discrimination, and creative judicial remedies.

The Madras High Court on Equality and Property Rights Within Marriage

In a significant judgment delivered on 21st June (Kannain Naidu vs Kamsala Ammal), the Madras High Court held that unpaid domestic labour performed by a married woman must be taken into account when determining legal rights to marital property. The facts of the case were as follows: after a decade and a half of marriage, the husband moved to work in Saudi Arabia. The wife was responsible for managing the husband’s affairs in India, looking after the marital home, and for the care and upbringing of the children. As part of this process, she purchased certain properties using funds provided by the husband. When the husband returned to India, disputes arose between the two, following which the husband filed a suit asking that his wife be injuncted from alienating any of the properties. The trial court held in favour of the husband, on the basis that the properties had been purchased with his money, and were in his name. This part of the holding was affirmed on appeal (certain other parts were reversed, but they do not concern us here), and the matter then reached the High Court on a second appeal.

The High Court framed seven questions for adjudication, which involved several issues. For our purposes, question six is relevant:

Whether the contribution made by the 1st defendant/wife towards acquisition of family assets (Item Nos.I & II to the schedule property) by performing their domestic chores, looking after home and family/caring for the family, taking care of the children etc, thereby releasing her husband for gainful employment would be a factor in determining the rights in acquiring the property, was considered by the courts below in proper perspective?

On a perusal of the evidence, the Court found that it was uncontested that the wife had been looking after the family, and the couple’s three children, ever since the husband left for Saudi Arabia (paragraph 32), and that furthermore, the wife contributed to the family by engaging in tailoring and taking tuition classes (paragraph 32). On a consideration of the correspondence between the parties, the Court also found it proven that there was a mutual understanding between the couple that the husband would earn money through his work abroad, while the wife would “take care of the children”; indeed, it was on the basis of this understanding that the wife gave up her own career choice of becoming a teacher (paragraph 33).

Having established these facts on record, the Krishnan Ramasamy J. went on to note that child and family care is a twenty-four hour job, and its performance – on an unpaid basis – by the wife enabled the family to save money (that would have otherwise been spent on engaging domestic help); and it was this – in turn – that enabled the husband to purchase the suit properties (in his name) (paragraph 34). Ramasamy J. thus observed:

In fact, the 1st defendant being a home maker, though she did not make any direct financial contribution, she played a vital role in managing the household chores by looking after the children, cooking, cleaning and managing day-to-day affairs of the family without giving any inconvenience to the plaintiff abroad and moreover, she sacrificed her dreams and spent her entire life towards the family and children. In these circumstances, whether the 1st defendant/wife can be excluded from claiming any share over the properties, viz., Item 1, 2 and 4? (paragraph 35)

Ramasamy J then went on to contextualise this not simply in the context of this particular marriage, but in the intersection between marital relationships and patriarchal social structures more generally. Thus, he noted:

In generaility (sic) of marriages, the wife bears and rears children and minds the home. She thereby frees her husband for his economic activities. Since it is her performance of her function which enables the husband to perform his, she is in justice, entitled to share in its fruits. (paragraph 36)

In other words, it is not always – and indeed not often – a question of choice, but rather an expectation baked into marriage.

In a remarkable set of paragraphs, which are well worth reading, Ramasamy J specifically set out the range of tasks performed within the space of the home in the language of labour: such as the organising of budgets, the managing of inventory, tasks around health and safety, and economising (paragraphs 37-39). He therefore held:

When the husband and wife are treated as two wheels of a family cart, then the contribution made either by the husband by earning or the wife by serving and looking after the family and children, would be for the welfare of the family and both are entitled equally to whatever they earned by their joint effort. The proper presumption is that the beneficial interest belongs to them jointly. The property may be purchased either in the name of husband or wife alone, but nevertheless, it is purchased with the monies saved by their joint efforts. (paragraph 40)

Thus, Ramasamy J held that in such a situation, where acquisition of assets was made possible by the joint contribution (direct or indirect) of both the spouses, both of them would be entitled to an equal share of the property. And in the instant case, based on all the evidence on record, it was clear that:

… the 1st defendant/wife has also contributed equally, though not directly but indirectly by way of looking after the home and taking care of the family for more than a decade and managing the household chores, thereby releasing the husband for gainful employment and made his stay comfortable in abroad and also to reduce the expenses and save the money for future benefit of the family including for purchasing of the assets. (paragraph 45).

This remarkable judgment speaks for itself in terms of the clarity and lucidity of its reasoning, but there are a few points worth making nonetheless.

The first, of course, is the Court giving a name to, and visiblising an aspect of the economy that is far too often invisiblised: domestic labour, especially when it is performed on an unpaid basis, and primarily by female spouses. The public/private divide has long kept domestic work out of the scrutiny of the vocabulary of rights and equality, and this judgment marks an important step towards countering that pernicious binary.

The second is the Court’s express acknowledgment, first, that domestic labour – which, as noted above, is overwhelmingly performed by female spouses – frees up the male spouse to participate in the sphere of production, and in gainful employment. As the branch of scholarship known as social reproduction theory [“SRT”] has long taught us, the spheres of production and reproduction (“reproduction” here means a broad set of activities, primarily performed within the home, such as cooking, cleaning, child-rearing etc) are interlinked, and co-dependent: labour in one provides the preconditions for labour in the other, but – and this is crucial – one is remunerated, while the other (when performed as a part of the martial relationship) is not.

Among other things, this leads to a further skew in power relations within an already skewed equation: as (primarily) male spouses have access to gainful employment, this makes it more likely that marital property will be purchased in their name, and will therefore be under their legal control. This economic skew – in turn – makes exit from marriages particularly difficult for female spouses (as economic destitution beckons); and the difficulty of exit bleeds back into the marital relationship itself, as how much voice one has in a relationship depends on how easy or difficult it is to exit from it. Indeed – and third – the Court recognises that this issue is structural, when it notes both that this occurs in a generality of marriages, and also that an arrangement such as this often involves the wife sacrificing her own economic capacities – and, thereby – her economic independence within the relationship.

Fourthly, the Court grounds its decision in evidence, and the specifics of the case before it. It is therefore particularly important to note its observation in paragraph 40 that there would be a presumption of equal interests in the property. This presumption is, naturally, rebuttable: there might be marriages that are of too short a duration for the presumption to apply, or where the arrangements are such that the factors listed above don’t apply. In such cases, judges have the discretion not to invoke the default 50% rule; but what is important to note is that as a general principle, and flowing from structural power difference within marital relationships, judges as a rule ought to be sensitive to non-economic contributions, and unless otherwise proven, apply the broad principle of according equal interests to marital property.

Interestingly, jurisdictions around the world have been increasingly coming around to this view (for examples from the UK, New Zealand, and Colombia, see the Ch. 7 of the present author’s PhD thesis, available here). Furthermore, less than two years ago, this blog covered a judgment of the High Court of Kenya that deployed very similar reasoning to achieve the same outcome (of course, the Kenyan Constitution guarantees equality within marriage, and the Kenyan family code explicitly direct courts to take into account “indirect contributions” within marriage). As with the Kenyan judgment, therefore, Ramasamy J.’s judgment at the Madras High Court joins a global judicial conversation about how to redress institutional inequalities – born out of patriarchy – within marriage.

Finally, it is important to note that this approach is not new even to Indian law. As the work of Prabha Kotiswaran has taught us, Indian courts have already been according value to unpaid domestic work while adjudicating cases under the Motor Vehicles Act. The Madras High Court’s judgment is a long-overdue extension of that reasoning to the domain of family law, and perhaps the next task is to link these two domains in an overall jurisprudence of marital equality.

In the meantime however, the Madras High Court’s judgment stands as one of the most brilliantly reasoned and progressive judgments that have come from the Indian judiciary in recent times.