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

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

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

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

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

Narasu Appa Mali

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

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

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

Personal Laws as ‘Laws in Force’

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

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

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

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

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

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

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

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

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

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

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

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

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

The Evolution of Personal Law in India

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

• Mountstuart Elphinstone,

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

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

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

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

‘Expressio Unius Exclusio Alterius’ under the Constitution

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

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

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

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

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

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

Conclusion

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Today: The Supreme Court’s nod to structural discrimination

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

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

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

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

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

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

T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

“Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

Guest Post – Difficult Conversations: On why the Supreme Court’s judgment in the Kerala Liquor Ban Case represents a lost opportunity to examine tough questions on discrimination

(This is a guest post by Karan Lahiri and Vrinda Bhandari. A condensed version of this piece appeared previously on Scroll.)

As a bleak year drew to a close, the Supreme Court delivered another distinctly underwhelming judgment, in The Kerala Bar Hotels Association & Anr. v. State of Kerala & Ors.. This judgment is disappointing not so much for its outcome, but because of a glaring omission.

 This case was about whether the State of Kerala’s statutory amendment restricting the grant of FL-3 licenses (i.e. bar licenses that allow the sale of Indian Made Foreign Liquor or IMFL to the public) to Five Star Hotels was constitutional. Many may feel that in upholding this measure, the Court has justifiably approved the State Government’s legitimate attempt to curb alcoholism, which has statistically been shown to be an “acute social problem”.

The most important issue, however, is unrelated to the legitimacy of the Government’s ultimate objective, or whether there is a right to trade in liquor (which the Court dwells on at length). The key question relates to the exception that has been made in favour of (20 or so) Five Star hotels in the State, and, consequently, those who can access such hotels, and whether this amounts to discrimination based on wealth and social class, violating the right to equality guaranteed by Article 14 of the Constitution. In fact, this issue was specifically raised, and is recorded in Paragraph 17 of the judgment: –

“The classification at hand is based on social and economic class, as there is a clear distinction between the expense and resultantly the clientele of the hotels that have been allowed FL-3 licenses and those that have not. Therefore, a strict scrutiny test must be applied, and the Government must be asked to provide a rigorous, detailed explanation in this classification… [W]hen discrimination is based on class, it is more pernicious and needs careful judicial enquiry.”

Unfortunately, this argument is not dealt with at all. Instead, the Court quickly accepted the explanation that this exception was directed at encouraging tourism. This omission represents a lost opportunity for the Supreme Court to re-examine fundamental questions about equality and discrimination.

One Size Fits All

Are there certain kinds of discrimination that are worse than others, demanding a more searching judicial examination? As of now, when a law differentiates or discriminates between two sets or “classes” of persons, the constitutionality of this line-drawing process is examined on the basis of a two-step test. First, a Court looks at whether there is an “intelligible differentia”. In other words, the line dividing two or more groups must be clear, based on discernible characteristics shared by members of each group. Second, it examines whether this “differentia” bears a rational relation to what the impugned law seeks to achieve.

The problem is that this is a one-size-fits-all test. All laws, essentially, differentiate between two or more groups of individuals. The Delhi Government’s odd-even formula to curb pollution differentiates between different groups (by exempting CNG vehicles, for instance), but it is, intuitively, different from a law that, let us say, penalizes begging on the road by the indigent. Can the same test be used for both sets of cases?

The “strict scrutiny test”, referred to in the judgment, is a concept that is making inroads into our jurisprudence, and is based on a concept we have borrowed from the U.S. When a law in the U.S. is tested on the anvil of equality, the default rule is that it will be upheld if it is rationally related to a legitimate government purpose. However, where the law makes a suspect classification (i.e. discrimination on the basis of race, religion, nationality etc., or analogous “discrete and insular minorities”), the more rigorous “strict scrutiny” test is applied. To survive strict scrutiny: –

1. A law must be narrowly tailored to achieve a compelling government interest.
2. It must be the least restrictive means for achieving that interest.

Notice that this test weighs in the importance of the State’s ultimate objective, and ensures that the means used to reach that objective are closely fitted to the ends, and that these are the least onerous means. Further, the fact that “suspect classifications” triggers strict scrutiny signals that the nature of the rights being affected by a discriminatory law are factored in, where some kinds of discrimination (i.e. on the basis of race, nationality etc.) are worse than others (e.g. a law exempting CNG vehicles from Delhi’s odd-even rule).

Just to clarify, this is not about whether the “strict scrutiny” test is the best test out there. What we are saying is that this was an opportunity for the Court to re-examine what goes into making a robust litmus test in equality cases.

Conversations on Equality and Class Discrimination

First, the Court should have begun a useful conversation on whether the dominant two-step test used in India is adequate to analyze all equality-related cases. As Dr. Tarunabh Khaitan points out, the test used in India is inadequate, because it is blind to the impact on, and the nature of the group being affected, as it does not “balance” the State’s interests against the rights of affected persons. Further, it does not look at the importance of the State interest involved, or whether there is a less onerous alternative. Putting it simply, as per the dominant two-step test, described above, if measure “X” is challenged on the basis that it is discriminatory, it is, simply put, based on whether it is reasonable and suitable to achieve objective “Y”, namely the Government’s end goal. The law in India, as it exists looks only at whether X and Y are reasonably connected, without looking at who measure X is impacting, or looking closely at the nature of objective Y.

Secondly, the Court should have entered into whether certain classifications are inherently “suspect”, justifying closer scrutiny compared to other more benign cases of differentiation. A good textual starting point would have been Article 15(1), which enjoins the State from discriminating on the basis of religion, race, caste, sex and place of birth. It could then have gone on to examine whether discriminating on the basis of wealth and social class is analogous.

We believe that this analysis, on discrimination based on social class, should have gone something like this.

1. Given that both the Preamble and Article 38(2), have woven equality of status into the Constitution, there is a constitutional justification for treating discrimination based on status and social class as a “suspect classification”, warranting a higher degree of scrutiny, as opposed to cases where an underlying constitutional norm is not violated.
2. Further, the Court ought to have looked at the additional question of whether the poor in India constitute what Dr. Khaitan calls a “vulnerable group”. In our opinion, poverty is about more that the lack of money or assets. It is characterized by a lack of social membership, meaningful citizenship, and dignity. Such a structural conception of poverty helps explain why the poor, as a separate class – independent of their caste or religious identities – are marginalized actors with little influence in the political process,^[1] deserving of judicial protection by means of more rigorous standard of scrutiny.

• Applying strict scrutiny standard, we believe the Kerala amendment ought to have been struck down. This is because even a universal ban on public drinking would have been a more narrowly tailored solution to the State’s objective of reducing alcoholism, since alcoholism afflicts rich and poor alike.

We must remember here that the Kerala amendment is about more than the price of alcohol. It is fundamentally different from a law raising the MRP of liquor, or imposing a tax on liquor across the board. What makes the Kerala amendment “pernicious” is that it singles out only those with the means to purchase liquor in a Five Star hotel, as also the status to enter and access a Five Star hotel, thereby giving them the exclusive privilege of drinking in public. At the same time, poorer sections of the population, who do not have the status to access such elite establishments (let alone afford the prices), are deprived of this privilege. Surely, the rich are not immune to alcoholism? However, this is almost exactly what the Court seems to suggest, when it says – “There is also little scope for cavil that the guests in Five Star hotels are of a mature age; they do not visit these hotels with the sole purpose of consuming alcohol.” The Supreme Court has, previously, in the Maharashtra dance-bars case, frowned on such logic, stating: –

 “Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency.”

The Supreme Court itself is not blind to fact that the Five Star hotel rating implies both a higher price and higher status for access. In dealing with allegations that Five Star hotels have opened out some of their premises for consumption of liquor at depressed rates in less salubrious surroundings, the Court encourages the State to end such “malpractice”, because, according to it, Five Stars are “violating the ambiance which they portray by enabling drinking in specially created bars at lower prices.”

What we have outlined above is what we believe to be the correct line of reasoning. We believe that gradualism and experimentation cannot be used as arguments to defer to legislative judgment (as the Court has done in this case), when groups are singled out based on social class and status. You may not agree either with the reasoning or the result we have proposed. That’s what makes Constitutional Law exciting – the fact that it inspires healthy and vibrant debate. Unfortunately, our Supreme Court has chosen to steer clear of such debate – a strange choice for an institution in a democratic polity, given that conversation and debate lie at the heart of democracy.

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Karan Lahiri and Vrinda Bhandari are both practicing lawyers. Karan Lahiri assisted in representing one set of Appellants in the Kerala liquor ban case before the Supreme Court.

[1] There is empirical evidence to suggest that the poor, India, rarely come together as a class in a way that makes democratic institutions respond to their preferences. This ties is with the writings of certain American Constitutional scholars, who speak of the poor as an “anonymous and diffuse” group that cannot organize itself effectively.

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Blog Editor’s Note: Previously, I’ve made the case for a higher threshold of Article 14 scrutiny in election cases here (unfortunately, we know how that turned out!), and Mihir wrote a guest post examining how the arbitrariness doctrine serves an alternative to the unsatisfactory one-size-fits-all nature of the rational review standard. To the persuasive arguments made in this post, I have a quick addition: a higher threshold of scrutiny would insist not only on the showing of a compelling State interest and a narrowly-tailored law, but would also place the evidentiary burden upon the State to demonstrate the connection. For instance, in this case, instead of making the State’s case for it by the blanket observation that people going to 5-Star Hotels are “more mature”, the Court would require the State to bring hard evidence forward showing that drinkers in 5-Star Hotels are less prone to be alcoholics, or indulge in violence, or something of that sort. Needless to say, it’s rather unlikely that there would be evidence of this sort forthcoming, and the law would have to fail. The purpose of this imposing this evidentiary burden is precisely to forestall the State from relying upon gross and invidious stereotypes about people (“uneducated persons can’t distinguish between right and wrong”, “5-Star alcohol drinkers are mature”) which, in itself, is a profound denial of the principle of equal concern and respect.

Guest Post: The Rejection of the ‘Arbitrariness Doctrine’ in the Panchayati Raj Judgment

(In this guest post, Mihir Naniwadekar explores the Supreme Court’s rejection of the arbitrariness test in the Panchayati Raj judgment).

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There has been plenty of discussion on this blog in connection with the issues arising in the Panchayati Raj case. This (very) short post is not an attempt to discuss all the issues (or even one single issue exhaustively) arising from the decision. Instead, I only wish to draw the attention of readers towards part of the reasoning employed by the Hon’ble Court – in particular, the Court’s rejection of the ‘arbitrariness’ challenge to the impugned provisions.

When the Court rejects ‘arbitrariness’, it proceeds on the basis of AP v. McDowell. It seems that McDowell did not absolutely rule out arbitrariness, but only insisted that the mere formulation ‘arbitrary’ is meaningless: the issue of why something is arbitrary must depend on constitutional analysis. What the Court said was, “Some or other constitutional infirmity…” is needed. Naturally: nothing is invalid because one asserts that it is arbitrary: if one says something is arbitrary, one must point out why it is arbitrary having regard to the constitutional scheme. Nobody denies that: the Petitioners in Panchayati Raj were not saying that the law is arbitrary because they dislike it. Rather, the law is arbitrary because it restricts a constitutional right (and this is admitted by the Court) without any constitutionally valid basis.

Secondly, in Malpe Vishwanath, a Bench seems clearly to leave open the arbitrariness window for challenging laws. Dealing with certain legal provisions of the Bombay Rent Control Act, the Court concluded its judgment by noting:

“It is, however, made clear that any further extension of the existing [legal] provisions without bringing them in line with the views expressed in this judgment, would be invalid as being arbitrary and violative of Article 14 of the Constitution and therefore of no consequence.”

Thirdly, in Mardia, on the question of whether a condition of pre-deposit prior to filing an appeal was invalid, the Court held that this was “unreasonable and oppressive” and ultimately uses the arbitrariness standard to strike down a law.

Merely relying on McDowell then is not sufficient to reject the ‘arbitrariness’ challenge. What the Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme. There does not seem to be any independent reasoning on this aspect.

Both Malpe and Mardia are cited only in footnote 34 of Panchayati Raj; and there is no independent analysis of these aspects. In footnote 34, the cases are cited as part of Petitioner’s submissions in another case. Nothing negative about these cases (on the grounds of arbitrariness) seems to have been stated in the other case.

In the circumstances, the present 2 judge bench should not have gone into this question to conclude that arbitrariness is irrelevant: at the highest this should have been referred to a larger Bench.

Furthermore, whatever one thinks of the correctness of Royappa, it is surely not open for a Bench of 2 Hon’ble Judges [and the Bench did not even indicate anything to the contrary] to reconsider Royappa. If one assumes Royappa to reflect the current position, there seems to be no reason in principle as to why the content of Article 14 would change depending on what is under challenge. Either Article 14 embodies an arbitrariness test or it does not. The answer to ‘what is the correct test as a matter of law under Article 14’ cannot turn on whether the challenge is to an executive action or to legislation, as the Court seems to indicate. Of course, what is being challenged may be relevant to the standards of review in the application of the test. Thus, one could argue that a legislative act requires greater deference than a purely executive act. At the same time, there are surely arguments which indicate that the standard of deference must also consider the nature of the rights at issue. I do not wish to examine issues pertaining to standards of scrutiny: the only point I wish to make is that the content of Article 14 cannot change in the manner suggested by the Court.

Perhaps, one could reconcile the cases and say that Article 14 embodies the standard equality test of whether there is a reasonable nexus with the object. However, the ‘arbitrariness’ keeps in check both, the object and the method for achieving the object. In other words, a law making it compulsory for red-haired IFS officers to get a haircut cannot be defended on the basis that “red-headed people are the butt of jokes, and having red headed people conduct international negotiations results in Indian prestige going down” [even if it is true that red-headed people in general are the butt of jokes]. In other words, ‘arbitrariness’ helps in determining what differential is intelligible and further, what methods are rational: and also reminds the State that constitutional morality means that certain objects and methods are always off the table.

Naturally, this requires the Court to analyze the Constitution to determine what is arbitrary in the constitutional sense. Not wanting to do this is, respectfully, not a ground for saying that one cannot challenge a law as arbitrary in any case.

[I do not add anything in this post on why the object is or is not arbitrary: that aspect has been dealt with in several other posts.]

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(Mihir is a Bombay-based lawyer)

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Blog Author’s Note: While agreeing with all that Mihir has said, I would add that Rajbala exhibits, in stark terms, the urgent need for a sustained judicial conversation about Article 14. At the root of Justice Chelemeshwar’s unease with the arbitrariness test appears to be, well, its arbitrariness. In Royappa, the arbitrariness test arose out of a justified judicial dissatisfaction with the formalism and emptiness of the traditional classification test under Article 14. As Mihir correctly notes, under traditional Article 14 scrutiny, you could have laws requiring red-haired IFS officers to get a haircut in the interests of maintaining national prestige. There is an intelligible differentia, a purpose, and a rational nexus. The deeper point is that at bottom, the classification test is empty and almost circular – any classification can be defended by producing some purpose with which it bears a rational nexus. Therefore, all that it achieves is to prevent governmental opacity – the State has to produce some justification, and the very requirement of making its reasons public will, in some sense, constrain the kinds of purposes it puts forth.

In order to move beyond this, a Court can do one of two things: put a constraint upon what counts as a “legitimate purpose” (this is what the High Court tried to do in Naz Foundation and in Subramanian Swamy), or subject the ‘rational’ nexus to more rigorous scrutiny. In her article on Indian gender discrimination law, Catherine MacKinnon reads E.P. Royappa to have attempted both through its new arbitrariness test: replacing doctrinaire equality with something more substantive. The problem is that the Court never really advanced upon this; ironically enough, one of the most egregious applications of the arbitrariness test was in Nargesh Mirza, where the Court held that compulsory termination upon first pregnancy was “arbitrary”, but upon the third pregnancy was not! Sitting here at the end of 2015, we’ve had 41 years since Royappa, and it is still unclear what the arbitrariness test is really about.

The absence of a meaningful complement to Article 14’s classification test must rank as one of the most serious failures in the Supreme Court’s history. This is compounded by the fact that it is precisely over the last forty years that other commonwealth jurisdictions have made great strides in their equality/discrimination jurisprudence. The United States has developed a tiered structure of review (strict scrutiny for race-based classifications, intermediate scrutiny for sex-based classifications, rational review for economic legislation etc.), which is focused upon the strength of the connection between the classification and the purpose. Canada and South Africa have developed a complex discrimination-law jurisprudence that speaks to preventing and ameliorating structural disadvantage, or remedying systemic indignities. The ECHR and the UK courts have made legislative and doctrinal advances of their own.

If we’re to escape from the Scylla of classification and its empty formalism, and the Charybdis of arbitrariness’ arbitrariness, going forward, the Court needs to have a serious conversation about the place of equality within our Constitutional scheme. This might require clarifying and concretising the arbitrariness test: what, exactly, does it mean for legislation to be ‘arbitrary’? Does arbitrariness rule out certain legislative goals that are contrary to the constitutional scheme (such as, say, endorsing invidious stereotypes or perpetuating group disadvantage)? Or does it require more rigorous levels of scrutiny, such as narrow tailoring and substantial relationship (instead of mere rationality), in certain specific cases, such as where vulnerable groups are involved? Alternatively, the Court might take its cue from Justice Chelemeshwar, and abandon ‘arbitrariness’ altogether in favour of a more direct approach to Article 14. Either way, it is a conversation that we can only hope will happen soon.