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

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

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

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

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

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

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

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

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


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

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

Prof. Khaitan ultimately concludes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

The Policy/Budget Argument 

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

The Parade of Horribles Argument

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

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

The Path Independence Argument

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

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

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

The Unintended Consequences Argument

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

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

Conclusion

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

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

 

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

[This is a Guest Post by Karan Gupta.]


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

The Constitutional Challenge to the Transgender Act

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

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

The Self-Determination Challenge

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

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

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

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

The Equality Challenge

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

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

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

The Non-Discrimination Challenge

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

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

The Affirmative Action Challenge

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

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

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

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

The Positive Obligations Challenge

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

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

Conclusion 

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

The Citizenship (Amendment) Act Challenge: Three Ideas

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

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

The Evolving Idea of Equality

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

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

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

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

Citizenship Laws and Standards of Review 

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

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

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

Harmonising Constitutional Principles: Sovereign Powers and Conditions of Entry

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

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

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

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

Conclusion 

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


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

A Strange “Notice”

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


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

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

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

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

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

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

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

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

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

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

[This is a guest post by Abhinav Chandrachud.]


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

Hidden Constitutional Premises:

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

The CAA Is Discriminatory:

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

Underinclusion, or the Chief Justice Patanjali Sastri Defence

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

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

The CAA is only part of the problem:

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

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

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

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

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

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

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

(This is a guest post by Varun Kannan.)


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

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

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

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

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

 

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

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

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

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

The validity of the religion and country-based classification

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The validity of the cut-off date-based classification

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

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

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

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

Conclusion

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