Guest Post: Gendered Beyond Repair? – Proposing an Interim Succession Regime for Same-Sex Marriages in Existing Law

[This is a guest post by Kartik Kalra.]

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During the hearing stages of the marriage equality case (Supriyo @ Supriya Chakraborty v. Union of India) before the Supreme Court, the Union has consistently highlighted the gendered language of the web of legislation governing marital relations, which includes the succession regime. This argument highlights the Court’s structural inability to redress the discriminatory character of the exclusion of same-sex marriage – even if the Court interprets Section 4(c) of the Special Marriage Act, 1954 (“SMA”) to permit same-sex marriages, the highly gendered web of legislation governing marital relations subsists. Since this web of legislation includes the law on succession, the argument proposes the Court’s abstention as the sole way of avoiding unanticipated complications. What happens when a Hindu homosexual couple marries – would they continue being a part of their respective Hindu Undivided Families (“HUF”)? When a gender-neutral interpretation of the SMA is offered, would the relationships stipulated in the orders of succession in the Hindu Succession Act, 1956 (“HSA”) and the Indian Succession Act, 1925 (“ISA”) be constructed similarly? In case this is done, would elements of classical Hindu law that permeate into legislation – especially in context of notional partitions u/s 6 of the HSA, also undergo interpretive changes?

In this piece, I examine the veracity of this, and propose that a gender-neutral construction of the ISA and HSA offers sufficient resolution. Since the HSA governs succession for Hindu unions pursuant to Section 21A of the SMA, I propose the extension of this interpretive choice to both the ISA and HSA in avoiding inter-se disparities among same-sex unions. In saving the SMA from unconstitutionality due to its exclusion of same-sex marriages, therefore, the Court must declare the extension of its gender-neutral interpretation of the words “widow” and “widower”, as they appear under the SMA, to both the ISA and HSA. Since the HSA (unlike the ISA) operates substantially within the gender binary, preventing the exclusion of Hindu transgender persons from the succession regime requires yet another declaration – the terms “male” and “female”, especially as they appear u/ss 8 and 15 of the HSA (defining the orders of succession), must be interpreted to include transgender persons based on their gender self-identification.

I make this argument in the following manner, using only extant statutory framework and doctrine – firstly, I propose the framework for succession under the ISA for inter-faith and non-Hindu same-sex unions; secondly, I propose the framework for succession under the HSA for Hindu same-sex unions; and thirdly, I propose that the ideal path for the Court to adopt, in order to prevent a disparity among same-sex unions inter-se, would be to mandate the continued application of the HSA to govern succession for Hindu same-sex unions.

A Preliminary Framework for Same-Sex Succession for Non-Hindus under the ISA

Section 21 of the SMA holds that succession to the property of any person whose marriage is solemnized therein would occur in accordance with the ISA, meaning that the personal laws of neither partner apply in the devolution of property. An exception is carved u/s 21A, which states that when two Hindus marry under the SMA, the HSA governs their succession. The HSA, however, won’t be applicable when a Hindu marries a non-Hindu, given Section 19 calling for their severance from the HUF. On the other hand, when two Muslims, Parsis, Christians or Jews marry under the SMA, the ISA applies with full force given Section 21, while retaining their membership of their respective households given the absence of an equivalent Section 19. The law governing succession for two kinds of marriages under the SMA – those between a Hindu and a non-Hindu; and those among non-Hindus – is found in Chapter II of the ISA, which I shall demonstrate to be as efficaciously applicable to same-sex unions using the gender-neutral interpretation of the terms “widow” and “widower” u/ss 33 and 35 of the ISA. The law is quite simple, which is as follows:

1. Section 33(a) of the ISA – In the presence of widow and lineal descendants, the former takes a one-third share, and the latter take two-thirds collectively;
2. Section 33(b) of the ISA – In the absence of lineal descendants, but the presence of widow and kindred, the former takes one-half, while the latter take the remaining one-half collectively.

While Section 33 of the ISA uses the term “widow” to signify the spouse, Section 35 equates the rights of the widow and the widower. Any reference to the rights of a widow, therefore, also constitutes a reference to those of the widower. This already makes matters quite simple – a reference to a male’s “widow”, pursuant to extant statutory framework, can be interpreted as a reference to their widower. Likewise, a reference to the rights of a female’s “widower” can be interpreted as one to their “widow”. The succession regime under the ISA also prevents the exclusion of transgender persons – a single order of succession is envisioned for all persons, irrespective of their gender or sex identities. For clarity on spousal shares in succession for same-sex unions, consider the following illustrations:

A, a Muslim male, marries B, a Parsi trans-man under the SMA. A dies, leaving behind B, two adopted sons, two adopted daughters, his mother, father, brother and sister.

Here, given the application of Section 21 of the SMA, succession occurs u/s 33 of the ISA. In the presence of lineal descendants, kindred are excluded. On this basis, A’s mother, father, brother and sister are excluded. B, being A’s “spouse” under the reinterpreted succession regime, takes a one-third share. The two adopted sons and two adopted daughters take a two-thirds collectively.

C, a Christian trans-woman, marries D, a Muslim female under the SMA. D dies, leaving behind C, one adopted son, two adopted daughters, her mother, father, brother and sister.

Here, given the presence of lineal descendants, kindred are excluded. C, being D’s “spouse”, takes one-third. The adopted son and two adopted daughters take two-thirds collectively.

From these two examples, it can be seen that the regime contained u/s 33 of the ISA, along with a gender-neutral interpretation of Section 35, makes matters quite simple for intestate succession for same-sex unions without requiring substantial legislative intervention. Matters may not be as simple for Hindu homosexual unions, both in terms of the inclusion of transgender persons and the highly gendered order of succession contained in the Schedule. I discuss this in the following section.

A Preliminary Framework for Succession for Hindu Homosexual Unions

Given the greater complexity of succession under the HSA, I propose a framework for same-sex succession specifically for Hindu same-sex unions in this section. In order to do so, firstly, I examine succession under the HSA in general (sub-section A); secondly, I evaluate the use of the HSA to undertake same-sex succession (sub-section B); and thirdly, I discern some anomalies arising from a gender-neutral interpretation of the HSA (sub-section C).

Succession under the HSA

As noted above, Section 21A of the SMA mandates the HSA’s continued application to two Hindus who marry therein. This section, inserted in 1976, serves the purpose of preserving the HUF. It claims to do so by excluding the application of severance-based disability generated by Section 19, retaining the Hindu’s membership of the HUF if they marry another Hindu. The solemnization of a Hindu homosexual union under the SMA, therefore, mandates the application of the HSA to govern the marital parties’ succession.

The HSA retains the Mitakshara-based distinction between Joint Family Property (“JFP”) and separate property, with the former referring to property held jointly by the coparcenary – a managerial unit overseeing the property’s economic well-being. The coparcenary, following the Hindu Succession (Amendment) Act, 2005, consists of sons and daughters of up to three degrees of lineal descent, who possess a share in the JFP. The first stage of devolution occurs using a process called a notional partition, which crystallizes the coparceners’ shares in the JFP immediately prior to the coparcener’s death. Following the crystallization of all coparceners’ shares, the second stage concerns the devolution of the deceased coparcener’s share on their heirs according to the order stipulated u/s 8 of the HSA r/w the Schedule if they identify as “male”; and according to the order stipulated u/s 15 of the HSA if they identify as “female”.

In Uttam v. Saubhag Singh, the Supreme Court held that a property loses its character as JFP once it devolves u/s 8, meaning that the devolution of a single coparcener’s share in the JFP may alter its identity [18]. The inheritors, however, are free to restart their own HUF, which carries a very low threshold as held in Commissioner of Wealth Tax v. R. Sridharan [10]. In that case, a Hindu man married a Christian woman under the SMA, claiming to have begun an HUF with himself and his son as coparceners. The Court accepted his contention, holding that the petitioner must only discharge the burden of being a Hindu u/s 2(c) of the HSA [10]. This was quite easy to prove, given its extremely low threshold according to the standards in Yagnapurushadji v. Muldas [29]. On this basis, while all property devolving u/s 8 at the death of any coparcener becomes separate property in the hands of coparcenary heirs, those heirs can restart their HUF. Lastly, it must be noted that one’s membership of the HUF (and the coparcenary) is immune from decisions to the contrary made by its remaining members, irrespective of the grounds of such a decision. The HSA contains an exhaustive list of factors disqualifying one from succeeding – murdering the person whose property one wishes to inherit; and being a descendant of one who ceased to be a Hindu. Section 28 of the HSA is explicit in holding that “[n]o person shall be disqualified from succeeding…on any other ground whatsoever”, emphasizing the exhaustive character of the HSA’s two disqualifications. On this basis, therefore, the HUF’s objections to a same-sex marriage carry no implications for the marital parties’ right to succeed to JFP.

Same-Sex Succession under the HSA

The rules for intestate succession for males and females are provided differently under the HSA, couched in gendered terms – the property of a “male Hindu” devolves upon the “widow”; the property of a “female Hindu” devolves upon the “widower”. In case the Court holds that these terms must be construed as “spouse” to save them from unconstitutionality, devolution for a same-sex female union would be covered u/s 15, and for a same-sex male union u/s 8. This interpretive choice will extend to transgender persons in the manner done by Arunkumar v. Inspector General of Registration – one’s gender self-identification would determine their status as “male” or “female” for the purposes of the order of succession. A transgender woman may be regarded as “female”, and a transgender man as “male” for determining the applicable order of succession. While this resolution is unsatisfactory due to its reduction of diverse identities into the gender binary, its purpose is to demonstrate the Court’s ability to secure sufficient equality using its gender-neutral interpretive framework. The argument proposing the Court’s structural inability in securing equality in matters of succession, therefore, is weak.

I now discuss concrete scenarios demonstrating the functionality of the gender-neutral interpretation of the succession regime. For the male union, the spouse of the deceased would inherit simultaneously with the deceased’s other Class I heirs specified in the Schedule. For the female union, the spouse of the deceased would inherit simultaneously with their sons and daughters, to the exclusion of all others. Consider the following illustrations:

A, a Hindu trans-woman, marries B, a Hindu female under the SMA. A dies, leaving behind B, two daughters D₁ and D₂, two sons S₁ and S₂, her brother, and her sister.

A, being a trans-woman, would be regarded as “female” pursuant to the gender-neutral interpretive framework. The coparcenary shares of D₁, D₂, S₁ and S₂ would be crystallized, and an equal share conferred on B pursuant to Gurupad v. Hirabai. In that case, the Court held that the widow is entitled to a share equal to that of the sons when undertaking a notional partition, since the notional partition occurs in accordance with rules of classical Hindu law mandating the same [11]. The HSA, as amended by the Hindu Succession (Amendment) Act, 2005, states that all references to “sons” be construed as those to “daughters”, leading to an interesting amalgam of classical Hindu law and the HSA. In this amalgam, the spouse (B) is entitled to a share equal to the sons’ and daughters’ coparcenary shares. The gender-neutral construction of the term “widow”, therefore, must be taken to its logical conclusion, and prior doctrine on devolution of property be interpreted to maximize the rights of same-sex unions.

When this notional partition is undertaken, the sons and daughters, along with B, get one-sixth each. This one-sixth, according to Saubhag Singh, is their separate property. At the second stage of devolving the deceased’s share in the coparcenary, A’s own one-sixth devolves upon their heirs u/s 15. This devolves upon the sons and daughters along with B u/s 16, giving them an additional share of one-thirtieth each. The total property with D₁, D₂, S₁, S₂ and B, at the end of the exercise, would be one-fifth each.

C, a Hindu male, marries F, a Hindu trans-man under the SMA. C dies, leaving behind F, two daughters D₁ and D₂, a daughter of a pre-deceased son D₃, and a daughter of a pre-deceased daughter D₄.

F, being a trans-man, would be regarded as “male” for the purposes of deciding the order of succession, which would occur u/s 8 r/w the Schedule. A notional partition would be undertaken u/s 6, crystallizing the coparcenary shares of D₁, D₂, D₃, and D₄, along with conferring an equal share on F (being C’s “spouse”) pursuant to Gurupad v. Hirabai. The reasoning in the above example applies directly.

In the notional partition, D₁, D₂, D₃, D₄ and F get one-sixth each. This one-sixth, according to Saubhag Singh, is their separate property. At the second stage, C’s own share devolves u/s 8. This devolves upon the D₁, D₂, D₃, D₄ and F since all of them are present in Class I of the Schedule – giving them an additional share of one-thirtieth each. The total property with each, the end of the exercise, would be one-fifth each.

On this basis, it can be seen that once a gender-neutral interpretation is offered to the terms “widow” and “widower” in the HSA, intestate succession for same-sex unions can function within extant statutory framework and doctrine. There arise anomalies, however, with regards to the relationship between one same-sex partner’s spouse and the other’s HUF. I discuss these in the following section.

Anomalies

Some anomalies may arise despite the gender-neutral interpretation of the terms “widow” and “widower”, since the HSA’s remaining text would remain highly gendered. In this section, I address one such anomaly – differential rights of male and female same-sex partners to inherit the other’s ascendants’ property u/ss. 8 and 15. Consider the following illustrations:

A, a Hindu male, and B, a Hindu male, marry under the SMA. A predeceases X, his father. X dies in 2023, leaving behind two sons, two daughters, and B.

In this example, in order to make B eligible for inheriting A’s property, the words “widow of a pre-deceased son” as they appear under the Schedule would have to be read as “spouse of a pre-deceased son”. Once this is done, B can inherit the property of X as a Class I heir along with the two sons and daughters, obtaining a one-twenty-fifth share.

C, a Hindu female, marries D, a Hindu female, under the SMA. C predeceases her father X. X dies in 2023, leaving behind two sons, two daughters and D.

In this example, there exists no statutory backing to make D eligible for inheriting X’s property. Since C and D have entered into a female same-sex union governed by Section 15, the order of succession provided thereunder must be followed, which is the following (in the order of precedence):

Sons, daughters (including children of pre-deceased children) and husband;

Heirs of the husband;

Mother and father;

Heirs of the father.

The term “widower of a pre-deceased daughter”, which describes the relationship between X and D, is evidently absent u/s 15. The absence of this term u/s 15 constitutes an impossibility to interpret it as “spouse of a pre-deceased daughter”, and to consequently confer succession rights on D. There exists, therefore, an anomaly – while a same-sex partner of a male deceased could succeed to his partner’s ascendant’s property, the same-sex partner of a female deceased would be unable to. This anomaly may be illustrative of the Union’s argument – judicial intervention may be unable to redress the highly gendered succession regime. In the following section, I argue that despite such occasional anomalies, the wisest choice to be exercised by the Court is to simply hold that until structured legislative change is introduced, the term “widow” and “widower/husband” shall signify “spouse” under both the ISA and the HSA.

Judicial Intervention Towards Succession and the Court’s Options in Supriyo

There exists no constitutional bar to the Court offering a gender-neutral interpretation to the terms “widow” and “widower” under the HSA and ISA, which it would do to save the SMA’s constitutionality. Marriage, without consequent succession rights, would be a continued equality violation, which the Court has sufficient infrastructure to redress. The options, therefore, are two – hold solely the ISA applicable to same-sex unions, resulting in Hindu same-sex unions’ severance from the HUF and their consequent ineligibility to inherit from its members; or hold both the ISA and the HSA applicable (with its limited anomalies), continuing their membership of the HUF and their eligibility to inherit from its members.

If the Court doesn’t wish to enter into the domain of succession under Hindu law due to anticipated allegations of overreach in matters of personal law, it may choose the former option. This option, however, carries substantial disadvantages for same-sex unions, for it would cause the extinction of their coparcenary rights and create a disqualification from inheriting the property of their HUF’s members. Alternatively, it can declare that both the HSA and ISA be interpreted in a gender-neutral manner, with succession for same-sex unions occurring under both. This option, I propose, is the least disruptive, and ensures a continuity of coparcenary rights for same-sex unions while keeping intact their eligibility to inherit HUF’s members’ property. The argument portraying the exercise of this option as judicial interference in matters of personal law misses a crucial point: this ship has already sailed, for the HSA’s contemporary succession regime for daughters and widows nowhere resembles its Mitakshara-law counterpart. The institution of the JFP has already been substantially weakened by legislation and case-law, with every single unit of property crystallizing upon a notional partition taking the avatar of separate property. The limited components of classical Hindu law that permeate into legislation, such as those dictating the manner of a notional partition, are equally efficaciously applicable to same-sex unions.

Further, as has been noted before, succession is a question of property, and concerns rights of a civil instead of religious character. The HSA has never been considered a religious codification necessitating the Court’s interpretive abstention, and has been consistently imputed with a transformative character, at least on the lines of gender – Gurupad v. Hirabai, Tulsamma v. Sesha Reddy, and Vineeta Sharma v. Rakesh Sharma are a few examples. The HSA’s gender-neutral construction, therefore, is in line with the Court’s consistent interventionist approach towards issues of succession law. In Supriyo, therefore, the Court must declare that same-sex marriages would occur under the SMA; and that succession for same-sex unions would be navigated both under both the ISA and the HSA, with a gender-neutral construction of the terms “widow” and “widower” as “spouse”.

Conclusion

On this basis, I submit that despite a few anomalies, succession for same-sex unions can be navigated with relative ease within existing succession law and doctrine. The JFP institution has been weakened by legislative change and judicial decisions, and a risk of judicial interference must not be a consideration. The Court, while holding same-sex marriage permissible under the SMA, must declare that succession shall be governed by the ISA for interfaith and non-Hindu same-sex unions, and under the HSA for Hindu same-sex unions. In making this declaration, it must hold that a gender-neutral construction of the terms “widow” and “widower” be done, undermining the gendered character of property undergirding the succession regime. It must also strive to include transgender persons within the succession regime following Arunkumar’s interpretive approach, using gender self-identification as the basis to determine the applicable order of succession. Members of a same-sex union must be conferred with the same succession rights as their heterosexual counterparts, a move that is well within the Court’s reach in Supriyo.

Guest Post: Reasonable Accommodation in the Hijab Case – A Double-Edged Sword

[This is a guest post by Chiranth Mukunda.]

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Introduction

On March 3^rd, the Supreme Court said that it would take a call to list the Karnataka Hijab case. Partly because of the frustration with the ERP test, which discounts agency, and partly because of the opportunity the case provides to develop the law on other constitutional grounds, a considerable amount of debate has shifted to Articles 14 and 15 (equality) and freedom of speech (Article 19), and away from Article 25.

Previously, on this blog, many authors have argued for adopting the principle of reasonable accommodation in support of their case for  allowing female Muslim students to wear hijab along with their uniform (see here, here, and here). These arguments tend to focus on the principle of reasonable accommodation in these scenarios:

1. While applying proportionality as a limitation analysis for restricting symbolic expression i.e., to consider the reasonableness of the restriction under Article 19. This argument goes as follows: The necessity (third) prong of proportionality requires the state to adopt the least restrictive measure to achieve a legitimate goal. Therefore, if the hijab as a form of symbolic speech grounded in constitutional rights can be reasonably accommodated along with the uniform, the restriction will be disproportionate. (here)
2. To make a case of indirect discrimination based on adverse effects (here). This goes as follows: the facially neutral policy of wearing a uniform has a disproportionate burden on female Muslim students, and the consequent failure to provide reasonable accommodation constitutes a case of indirect discrimination. What is important to highlight here is that indirect discrimination also involves proportionality analysis. Presently, disparate impact on a group can be justified if it is a proportionate means of achieving a legitimate aim, failure to establish this by the respondent makes a case of indirect discrimination.

In his split judgment, Dhulia J finds the situation in the hijab case analogous to the situation in the Bijoe Emmanuel case, which he considers a “guiding star which will show us the path laid down by the well-established principles of our Constitutional values, the path of understanding and tolerance, which we may also call as reasonable accommodation.” What is to be noted here is that reasonable accommodation is formulated as mere tolerance, a magnanimous concession from the majority, rather than a matter of right. This way of reasoning presupposes objectionable conduct (objection component) which is then to be balanced by the acceptance component i.e., the reasons to transcend the objection component, which are given by constitutional values. This is not a problem with the framing by the judge, but as I show below, it is inherent in the very concept of accommodation. Alternatively, as a matter of right, constitutional values negate the very first step of the conduct being considered objectionable.

Indian jurisprudence on reasonable accommodation is not fully developed, even in the cases of disability rights where it is explicitly applied as a principle, and its application to sex and religious discrimination cases is vague. In addition to its relative infancy in these areas, there is an inherent limitation to its application, more so when sex and religion are the subject matter than disability. It gets more complicated when sex and religion are entangled, as in the hijab case. I argue that, when discrimination is systematic and institutional, engrained in the system of domination, having temporary gains in the form of reasonable accommodation belies the transformative purpose of the non-discrimination guarantee.

In this essay, I will first, briefly set out the principle of reasonable accommodation as recognized by the Supreme Court; second, highlight the drawbacks of the principle by showing its assimilative tendencies; and third, consider its application along with the adverse effect claim and the consequent limitations of that line of enquiry.

The principle of reasonable accommodation: cuts both ways.

Recognition of the principle by the Supreme Court

Sandra Fredman advocates for a multi-dimensional approach to substantive equality to liberate it from a formulistic approach. Each of these dimensions might be overlapping, but what it essentially does is to provide an “analytical framework” for achieving substantive equality. These four dimensions are:

First, redressing disadvantage: it aims to break the cycle of disadvantage associated with status;

Secondly, redressing stigma, stereotyping, and humiliation;

Thirdly, the participative dimension: participation in society both socially and politically;

Fourthly, accommodating difference and structural change; not exacting conformity as a price for equality.

In the fourth dimension, structural change sits uneasily with accommodation. Rather than being complementary to each other, it is argued that the idea of accommodation hinders structural change. The accommodation principle has also been called the ‘difference approach’ for its link to the sameness/difference framework of formal equality. Also to be noted is the potential for ‘accommodation’ to negatively affect the second dimension by furthering stigma and stereotyping.

In recent years, the Court has with increasing frequency opined that the general equality guarantee set out in Article 14 is not limited to formal equality, but is a  more substantive guarantee linked to remedying patterns of disadvantage for a group/class suffering systematic discrimination. In the NALSA case, the Supreme Court held that:

…equality not only implies preventing discrimination (example, the protection of individuals against unfavorable 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.

A similar concept was advanced in cases like Jeeja Gosh and Vikash Kumar, where the Supreme Court applied the principle of reasonable accommodation as a ‘substantive equality facilitator’. In the area of disability rights, “the concept of reasonable accommodation entails making necessary and appropriate modifications and adjustments so long as they do not impose a disproportionate or undue burden in a particular case to persons with disability.” (see here)

What is implicit in the need for making appropriate modifications and adjustments is that in some situations it might be appropriate to retain the norm while making exceptions, and accommodating differences whenever the cases arise. Prof. Sandra Fredman gives an example that “when Sikhs are unable to wear a hard hat on a construction site because of their religious duty to wear a turban, the creation of an exception is preferable to the wholesale rejection of the rule” (see Canadian case Bhinder vs CN). In this scenario, it might be intuitively preferable to keep the norm while accommodating “difference”, but in complex scenarios where the norm itself needs to be challenged, the principle suffers from serious limitations. In such scenarios, to effectuate systematic change, it requires the wholesale rejection of the norm, rather than carving out exceptions. I will come to this point later in the piece.

One size does not fit all

While the principle of reasonable accommodation is explicitly recognized in cases dealing with disability rights, there is a cause for caution in applying the same principle in cases the of gender and religion in diverse societies because of its assimilative tendencies and capacity to reinforce stigma and stereotype. As Chandrachud J recognized in Vikash Singh, the principle of reasonable accommodation in disability rights is an individualized principle, and what is reasonable might require case-to-case analysis, because the extent of disability varies from individual to individual. What needs to be highlighted is that the same principle cannot be applied in all cases with different identities and contexts. Although the peculiarity of each individual case of disability might necessitate individual enquiry, this doesn’t imply structural change is unnecessary in other disability rights cases. Nevertheless, on balance individualized assessment in religion and gender cases has the potential to hinder structural change.

Reasonable accommodation as ‘second class version of equality’

The problem with this principle is inherent in the plain words ‘reasonable and ‘accommodation’. To start with, what does ‘reasonable’ mean? Does it mean some type of cost-benefit analysis? Or a proportionality/balancing approach? Chandrachud J in Vikash Singh observed:

Reasonable accommodation demands departure from the status quo and hence ‘avoidable complications’ are inevitable. The relevant question is whether such accommodations would give rise to a disproportionate or undue burden.

If this is the case, then the dignity of the individual is forsaken when the person’s right to equality in a substantive sense is subject to the burden that falls on a duty-bound person. If mere inconvenience to society can act as a cause to limit freedom, what is the worth of freedom anyway? Further, ‘accommodation’ implies that the power to define social interactions remains with the dominant group, while those who fall on the wrong side of it are burdened to challenge it. The likelihood of the challenge to succeed is contingent on accommodation being feasible for the other party. These lines by Brodsky and Day capture the essence of the exceptionalist aspect of reasonable accommodation:

It does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated… In short, accommodation is assimilationist.  Its goal is to try to make “different” people fit into existing systems.

Essentially, the principle of reasonable accommodation entails that “powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.” While the exclusive norm is a socially constructed barrier acting as a restraining factor with an unequal burden on disadvantaged classes; the ability to change this is dependent on the new norm not causing undue hardship to the powerful and majority.

Another side of the same coin: a link to formal equality

Catharine Mackinnon, in the context of gender discrimination, highlights the problems with reasonable accommodation. In the formal equality approach, there are two types: those who are ‘same’ and those who are ‘different’. It entails treating likes alike and making exceptions to those who are different. This sameness-difference framework implies that there is a dominant category that is normal, and those under it should be treated the same, while those who are relatively different from it are considered ‘abnormal’, a deviation from the norm. Thus, accommodations should be made to bring them close to the norm. She writes, “…man (the dominant norm) is the measure of all things…and our equality judged by our proximity to him.” Hence, by treating the status quo as standard and accepting its norms as neutral, reasonable accommodation does not challenge the dominant social structure but merely carves out exceptions in the language of “special privilege”. Therefore, substantive interpretation of the right to equality should avoid the language of special or preferential treatment, but reasonable accommodation does not seem far from taking us back to formal equality.

Adverse effect and corresponding duty to accommodate: Limitations

Indirect discrimination/adverse effect in the hijab case

When a facially neutral policy or practice, in operation, adversely and disproportionately affects a protected group, a prima facie case of indirect discrimination is made out. The burden is on the respondent to prove that it is a proportionate means of achieving a legitimate aim. This implies that, under  the existing framework, indirect discrimination is justified or excused as opposed to direct discrimination on a protected ground, which needs an explicit statutory enabling provision (like 15(3)). What is important to note here is that whether the practice is directly or indirectly discriminatory has a substantial bearing on the line of enquiry, justifications offered, and the outcome of the case. It also determines the degree of oversight, deference, and seriousness with which the judge will look into the matter. Hence, it is important to configure the underlying basis of distinction.

Let’s focus on the word ‘neutral. Because a particular practice or policy is neutral on its face and generally applicable, the form of the impugned measure is not challenged, but the effect of the policy is examined. But a deeper analysis will show that what is neutral is itself a product of structures and norms created by the majority. Institutionalized expression of these norms makes them looks like innocuous facts, but they are nothing but “generalized descriptions of those who are the dominant and traditional participants in a particular institution, and of the conditions that will best support them.”

An example (like the one here, with modifications) will clarify the point. Suppose a school has a calendar specifying holidays throughout the year, which were originally based on the mainstream festivals of the dominant religion. Now the rule applies neutrally and equally to all students in the school who are made up of a diversity of faiths and beliefs. In this scenario, can we call the calendar neutral because of its general application? Now when this ‘neutral’ calendar conflicts with religious observances of non-dominant religions, this supposedly becomes a case of adverse effect discrimination and casts a duty on the school authorities to reasonably accommodate non-dominant faiths subject to undue burden. There is an additional caveat. Now suppose the school authorities oppose accommodation, citing secularism as a value to be upheld and reasoning that it is justified to not accommodate because, say, it may lower the morale of students in a secular institution (I do not consider the difference of positive and negative secularism here for the sake of simplicity). It’s hard to miss the irony here, as the original norm was itself a product of a traditionally dominant structure, whereas now minority groups are merely to be accommodated, short of causing undue hardship, which is now subject to secular values. Cultural life forms of the dominant group are in sync with the social structure, but those with distinct cultural identities and forms of life are disadvantaged in the same structure. Here, striking down the rule might be more appropriate than making minor exceptions in the form of reasonable accommodations.

The point is that whether to strike down the rule causing adverse effects on a disadvantaged group or make accommodations is a choice that must be made. A rigid distinction between direct and indirect discrimination will offer remedies that are short on structural change and fail to reach the true goal of substantive equality, i.e., remedying structural disadvantage. The above-mentioned scenario might have struck a chord with its readers for its similarity with the situation in the hijab case. Simply put, the uniform was designed and implemented, ignoring the possibility of someone wearing a hijab going to the institution. Naturally then, it becomes a clear case of direct discrimination based on protected grounds. So, the broader point is that “neutral” rules are not as innocuous as they may seem, they conceal the seriousness of the violation behind a veil of neutrality.

The shaky distinction between adverse effect and direct discrimination:

In the landmark Canadian case of Meiorin, the Supreme Court of Canada held that:

 …the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable: the standard itself is discriminatory because it treats some individuals differently from others on the basis of a prohibited ground, the size of the “affected group” is easily manipulable…

Further, it held that the distinction between adverse effect discrimination and direct discrimination is unrealistic and leaves room for abuse. Seldom is the discrimination open, like “no female Muslim students here”. The court then considers the malleability of the distinction:

… a rule requiring all workers to appear at work on Fridays or face dismissal may plausibly be characterized as either directly discriminatory (because it means that no workers whose religious beliefs preclude working on Fridays may be employed there) or as a neutral rule that merely has an adverse effect on a few individuals (those same workers whose religious beliefs prevent them from working on Fridays).

Its reasoning was that-distinction between these two approaches “may serve to legitimize systemic discrimination” and give a standard drafted in neutral language “an undeserved cloak of legitimacy”; and on reasonable accommodation , the court opined:

Although the Government may have a duty to accommodate an individual claimant, the practical result of the conventional analysis is that the complex web of seemingly neutral, systemic barriers to traditionally male-dominated occupations remain beyond the direct reach of the law. The right to be free from discrimination is reduced to a question of whether the “mainstream” can afford to confer proper treatment on those adversely affected, within the confines of its existing formal standard. If it cannot, the edifice of systemic discrimination receives the law’s approval. This cannot be right.

The court, then adopted a uniform approach to both direct and indirect discrimination because it considered that the “classification ill-serves the purpose of contemporary human rights legislation.”

Before this judgment by the Canadian Supreme Court, direct discrimination had a higher standard of review, which required the impugned measure to be “reasonably necessary” to the stated legitimate goal, whereas indirect discrimination merely required rationality review. Since Meiroin, the distinction between direct and indirect discrimination in Canada has no practical utility since the same analytical framework applies to both types of discrimination. Contrast this with India, where the place of indirect discrimination itself is still unclear. Some have located it in the manifest arbitrariness test or in the classification test of Article 14, while others have suggested that Article 15 challenge can include both direct and indirect discrimination. A judicial resolution of this dilemma is needed because Article 15(1) is of the nature of constitutional prohibition, whereas Article 14 involves an analysis of reasonableness.

Nevertheless, the purpose of the above discussion was to show that an artificial distinction between direct and indirect discrimination solely based on neutrality or general applicability of the standard needs to be reconsidered, because it gives undue legitimacy to the rule causing an adverse effect on protected grounds.

Indirect discrimination and accommodation: eschewing exceptionalist remedies.

Considering all the above-mentioned points, if the court frames the issue as one of adverse effects, it is more likely that the rule will stay, and accommodation, subject to reasonableness will be added. Considering this, Joan Williams in this paper explains how the standard structure of wage labour is male centric, structured without taking into account childcare activities, which are disproportionately done by women i.e., an ideal worker is defined as someone who follows a male pattern of life. Women are predominantly disadvantaged in this structure, they may either choose part-time work or a lower-paying job with relatively lesser benefits. One way to remedy this is to recognize the disparity in childcare responsibilities and afford special protections to women who are burdened as a result as a result of unequal childcare responsibilities. This will be hailed as a substantive equality measure which has taken account of social realities. This way, the structure of male-centric wage labor remains, but those who are disadvantaged are going to be ‘accommodated’. This is what Williams argues against.

She makes a case for protecting not only women but “anyone who has eschewed ideal worker status to fulfil child-care responsibilities.” The measure should be sex-neutral, not gender-neutral. (see here, for more) This type of remedy avoids exceptionalist measures, while still being grounded on social realities. This way, the problem faced in the South African Constitutional Court case of Hugo can be overcome. Hence, meaningful change requires changing the entire structure of ideal wage labour, and not simply making accommodations.

Thus, the accommodation approach has the potential to reinforce existing presumptions about what is considered ‘normal’. In the Nitisha judgment, Chandrachud J opined:

The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of   them, but also structure adequate reliefs and remedies that facilitate social re- distribution by providing for positive entitlements that aim to negate the scope of future harm.

Evidently, reasonable accommodation fails to meet this criterion of substantive equality. If ‘social redistribution’ that ‘negate[s] the scope of future harm’ is what substantive equality seeks to achieve, using the means of individualized principle like reasonable accommodation in gender and religious discrimination cases is inadequate for the stated purpose.

Conclusion

In cases of adverse effects or indirect discrimination, the duty to reasonably accommodate, in the nature of an exception, is less of a duty than a way to escape liability. If the transformative purpose of our Constitution is to be achieved, we need to make the concept of ‘inclusiveness’ central to our approach while remedying class/group disadvantage. Inclusiveness does not only demand that ‘difference’ to be accommodated but also mandates dismantling existing social hierarchical norms and to deinstitutionalize ‘difference’. This does not mean non-recognition of ‘difference’ but would rather mean eliminating the unfavorable social consequences attached to the ‘difference’ by reducing the role ‘difference’ plays in organizing social life.

Altogether, the principle of reasonable accommodation is innocent in its foundation. It seeks to achieve inclusiveness, but it should be noted that it is not inclusive enough. Proponents of substantive equality should be wary of ad hoc approaches like reasonable accommodation while what is needed is a fundamental shift. As Brodsky and Day note, “…minority rights version of accommodation does not require the powerful and the majority to work with others, on an equal footing, to devise new rules and practices that will better serve all the groups in a diverse population.” Treating disadvantaged groups as equals requires abandoning the language of special treatment/privilege and looking for genuine equality.

To sum up, the distinction between direct and indirect discrimination in the hijab case should be reconsidered; adverse effect discrimination should not preclude considering the legitimacy of the rule; the choice to strike down the rule or apply the principle of reasonable accommodation should be dependent on the context, identity of the affected parties, and the nature of the rule; the numerical strength of those affected by an apparently neutral standard, whether a single person or a group, should be irrelevant when considering the decision to strike down the rule or allow it to stand, as long as discrimination is made out on a protected ground(s).

Equality in Marriage and the Limits of Transformative Constitutionalism: The Kenyan Supreme Court’s Judgment in Ogentoto vs Ogentoto

Article 45(3) of the Kenyan Constitution stipulates that “parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.” This potentially radical provision brings equality into the very heart of the private sphere: that is, to the marital relationship. Of course, the devil is in the detail: one ongoing controversy has been whether – and to what extent – Article 45(3) applies to property claims at the time of the dissolution of a marriage (see Ch. 7 of the present author’s PhD Thesis).

The roots of the controversy lie in the patriarchal structures of our world. It is an incontrovertible fact that in most societies, men hold a disproportionate share of immovable property (for the gendered skew in Kenya, see here). The reasons for these are both historical (dating back to times when women were legally barred from owning property) and current (structural barriers to women acquiring the resources to obtain property). It is also an incontrovertible fact that within marital relationships, division of labour is overwhelmingly gendered, even in a fast-changing world: statistics show that a significant share of (unremunerated) domestic labour continues to be performed by women. For our purposes, this has a natural, knock-on effect upon financial earnings within marital relationships. Subject to exceptions, at a structural level, financial and non-financial contributions towards a household skew along a gendered axis. This, in turn, means that when it comes to the acquisition of property during the course of a marital relationship, again – at a structural level – the financial contributions of the male spouse tend to be greater than that of the female spouse.

If, therefore, at the time of the dissolution of a marriage, property is divvied up solely on the basis of who has legal title to it, it is clear that such a solution will only serve to exacerbate the gendered inequalities that structure a marriage: women come into a marriage at a disadvantage, this disadvantage persists through the marriage, and then becomes the cause for further disadvantage if the marriage ends, and property needs to be divided: a vicious cycle.

What, then, is to be done, if “equality within marriage” is to be meaningful? One solution – prevalent in some jurisdictions – is known as “community of property,” and simply requires a straight, 50-50 split of matrimonial property upon the dissolution of marriage (this solution also carries with it some interpretive problems, such as defining what constitutes marital property). At the other extreme is what we discussed in the above paragraph – only financial contributions are considered towards determining legal interest in matrimonial property. And in between these two solutions, there is a spectrum of different models and approaches: for example, explicitly factoring in non-monetary contributions such as care work, domestic work, and emotional labour (see e.g. Kenya’s Matrimonial Property Act of 2013); having a 50-50 split as a default, which will not apply in cases where it is clearly unconscionable; factoring in the length of the relationship; and so on.

In Joseph Ombogi Ogentoto vs Martha Ogentoto (decided today), the Supreme Court of Kenya located itself somewhere near the middle of the spectrum described above. The case was complicated somewhat by the fact that it was filed before the 2013 Matrimonial Property Act came into force, and there was therefore a question of whether it was governed by the old 1882 Matrimonial Property Act (which did not provide for non-monetary contributions), or the new one. The Supreme Court held that while the 1882 Act was applicable, so was the 2010 Constitution of Kenya (as Article 45(3) applies directly to private parties). The question then squarely arose: what was the meaning of the phrase “equal rights … at the dissolution of a marriage.”

Positions from across the spectrum that we have discussed above were canvassed before the Supreme Court. The Court held that (a) Article 45(3) did not require an absolute rule of a 50/50 split at the time of the dissolution of marriage, and (b) the respective shares of the property would have to be determined on a case-to-case basis, depending upon the actual contributions of each spouse.

As a principled point, the Supreme Court noted that equality within marriage did not entail a redistribution of property rights. With the greatest of respect to the Court, the arguments advanced above make it clear that if you want to have genuine equality within marriage, you do need to reimagine property rights, at least to some degree: as we have seen, existing patterns of property ownership, when placed within patriarchal structures, exacerbate inequalities instead of mitigating them. Indeed, to some degree, this reimagining has already happened in the 2013 Matrimonial Property Act, where childcare, domestic work, and companionship are all treated as “contributions” towards the acquisition of matrimonial property, no matter in whose name and with whose money it is acquired. Another form of reimagining was put forward by the Law Society of Kenya (acting as amicus), which asked the Court to start with a default presumption of a 50/50 division, which could then be departed from in exceptional circumstances. In my view, this would have been a solution that would have both recognised the structure gendered inequalities within marriage, and allowed judges the discretion to mold relief where specific cases did not fall within that structure. However (subject to a caveat I shall come to later), this interpretation did not find favour with the Court.

One can see, therefore, in this judgment, the limits of transformative constitutionalism when it comes to the private sphere, limits that are articulated in the Court’s hesitation to tamper too greatly with the legal regime of property. This is notable, especially because in other contexts, the Court has brilliantly reimagined property rights in the context of transformative constitutionalism: think, for example, of the remarkable judgment in William Musembi, that did so in the context of evictions and the right to housing. Perhaps marriage and the family, however, remains the last hold-out against transformative constitutionalism’s impulses towards democratising the private sphere. Indeed, this is particularly poignant when we consider Dr Victoria Miyandazi’s argument, in her book, Equality in Kenya’s 2010 Constitution (2021), that the intention behind Article 45 was, inter alia, to address “harmful practices such as … unequal claims to matrimonial property upon divorce.” (see pg 42)

Now, having held the above, a lot would turn on what the Court would say about the burdens and standards of proof when it comes to the question of proving contribution. Here, there appears to be some internal tension within the judgment. At certain points, the Court seems to suggest a high standard of proof; citing the previous case of Echaria vs Echaria, for example, it notes that specific contribution has to be assessed towards a specific share (paragraph 78) (one wonders how that can be done for something like emotional labour, or companionship). The Court also appears to approve Echaria’s finding that the performance of “domestic duties” would not entitle a spouse to a beneficial share in the property (paragraph 83), although one expects that this proposition would certainly not be tenable within the statutory framework of the 2013 law. The overall drift of these observations appears, however, to somewhat devalue non-monetary contributions in determining beneficial interests in matrimonial property, and placing a higher burden of proof upon what will overwhelmingly be female spouses.

At the same time, however, other parts of the judgment appear to endorse a more egalitarian perspective. In paragraph 94, the Court correctly notes:

Equity further denotes that the other party, though having not contributed more resources to acquiring the property, may have nonetheless, in one way or another, through their actions or their deeds, provided an environment that enabled the other party to have more resources to acquiring the property. This is what amounts to indirect contribution. Equity therefore advocates for such a party who may seem disadvantaged for failing to have the means to prove direct financial contribution not to be stopped from getting a share of the matrimonial property.

In the next paragraph (para 95), the Court notes:

Any substantial contribution by a party to a marriage that led to acquisition of matrimonial property, even though such contribution is indirect, but nevertheless has in one way or another, enabled the acquisition of such property amounts to significant contribution.

One must note the breadth of the term “in one way or another.” Indeed, in the same paragraph, the Court approvingly cites the English case of Burns vs Burns, which listed childcare and domestic work as indirect contributions (contrary to the observations in Echaria, which the Court also appears to approve of), and the judgment in White vs White, which specifically observed that “there should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

So, which of the strains of thought is dominant in the Court’s judgment? Interestingly, towards the very end, the Court considers two Canadian judgments that advanced the LSK’s proposition of a default 50% rule subject to departure in exceptional cases, and then, in paragraph 103, it notes that:

In agreeing with the above [Canadian] decisions, we must note that, in a marriage, the general assumption is that both spouses share everything, and on the face of it, both parties contribute towards the home or family, in one way or another, to whichever extent, however big or small. Again, and further to this, both spouses may also work and earn income, which inevitably, at most instances, always ends up being spent on the family unit. It may be the whole income, or a substantial part of it, but ultimately, a percentage of it goes into the family. This is the essence of Section 14 of the Matrimonial Property Act, 2013.

Now I would submit, with respect, that this formulation brings the Supreme Court very close to the LSK’s stated position of a default rule of 50%, that a judge could depart from in cases of unconscionable circumstances. The Court does not specifically use that language, but phrases such as “general assumption” and “one way or another” do suggest that in the application, the starting point should be one of equality. For the reasons advanced above, I suggest that this is the true import of Article 45(3) and equality within marriage, in the context of transformative constitutionalism. And, what is more, the Court goes on to agree with the Court of Appeal’s 50/50 division of property in this case, and dismisses the appeal against the CoA’s judgment?

So, where do we stand? While on the one hand, it would perhaps have been ideal if the Supreme Court had laid down a clear rule that the default is equal division, with the burden lying upon the party who wishes to depart from it, there is enough in the judgment to suggest that on a case-by-case basis, that is roughly the approach that ought to be followed. In this context, the next terrain of battle will be litigation around how, precisely, one understands the term “non-monetary contributions” under the 2013 Act, and how one goes about establishing them (especially for terms such as “companionship”, because how can you possibly quantify “companionship”?). Indeed, in a brilliant judgment from 2021, the High Court of Kenya at Nakuru has already initiated this analysis, noting that childcare and domestic work entitled the female spouse to a 50% share of the matrimonial property; that needs to be carried forward. There will also be parallel struggles about the very definition of what constitutes marital property, but that is a different matter. And it will probably be in the implementation – and the future interpretation of today’s Supreme Court judgment in concrete family law disputes – that the interface between equality, marriage, and transformative constitutionalism in Kenya will play out.

Guest Post: Distributive Justice and the EWS Judgment

[This is a guest post by Faizan Ahmad. The author thanks Anurag Bhaskar for providing some of the non-open access academic material used in this post.]

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Much has been said about the Supreme Court’s decision in Janhit Abhiyan v Union of India  on reservations for ‘Economically Weaker Sections’ [EWS]. So far, the framing of equality in the majority, as well as dissenting opinion, and some judges’ observations on the basic structure doctrine have been questioned.

All the judicial opinions, including the hailed dissent, are united in the embrace of an income-based exclusive criterion, in principle, as a permissible form of reservations. This post shows how the court, in upholding the EWS reservations has not engaged with some indispensable considerations under its basic structure enquiry. I also discuss two more overlooked, but equally serious and concerning ideas in the judgment: the court’s invocation of ‘efficiency’ and Article 335 as a limit to reservations, and the intention to fix a time limit on reservations.

The Basic Structure Enquiry

Similar to the framing in Nagaraj, the court begins by noting that a constitutional amendment can be challenged only on the basic structure doctrine. [Maheshwari J ¶33, Nagaraj ¶28] Accordingly, the question is whether reservations based on an individual income criterion would violate the basic structure. This is indeed an uphill task. If it were not a constitutional amendment, one could simply argue that it violates articles 15(4) and 16(4). On the other hand, a constitutional amendment would not, per se, be bound by the requirements of already existing reservation provisions i.e., Articles 15(4)/16(4). But does that mean that the purposes and essential principles behind reservations are irrelevant in its basic structure enquiry?

Before addressing this question, some aspects of the basic structure enquiry need to be highlighted.

First, examining whether an amendment violates basic structure is ultimately an exercise of abstraction and depends on what level of abstraction the court accepts. Courts seem to have adopted a deductive approach where a specific provision/measure is tethered to a more general abstract principle. For instance, RC Poudyal v. UoI  involved tethering the “one-person-one-vote” principle to ‘representative democracy’. Yet, establishing this connection as a critical one was not sufficient. It had to be shown how a deviation ‘damages’ or ‘destroys’ an abstract concept of representative democracy. Since these concepts are always on a high level of abstraction, it essentially becomes akin to the Ship of Theseus puzzle, where we can never tell at what point something actually destroys or alters the identity [of the Constitution]. No wonder most basic structure challenges fail. These problems make scholars and lawyers wary of the basic structure ‘dilemma.’ For now, we are stuck with a dilemma which cannot be escaped (contrary to a suggestion here), but can only be navigated.

Second, some suggestions to overcome this hurdle (also argued by one petitioner), are along the lines of the following deduction:  basic structure >> equality >> substantive equality>> reparative justice >> reservations >> based on social and class backwardness, underrepresentation etc. Simply put, reservations not based on certain essential criteria will no longer be reparative justice, which will in turn destroy/alter the identity of substantive equality, which is part of the basic structure.

Bhatia has pointed out that because of the polysemous nature of these abstract principles, it is difficult to sustain a basic structure challenge. He is unconvinced because there may be various visions of equality and “basic structure does not bind Parliament to any particular conception of equality and social justice.” It is very difficult to disagree but there is also discomfort in endorsing that the absence of a fixed meaning is a licence for the Parliament to get away by labelling any measure as enabling equality, and that any attempt to constrain this is judicial dictation of policy. I offer no roadmaps or answers, and in the next few paragraphs, I attempt to illuminate some possibilities by returning to how the court dealt with a similar dilemma in the NJAC case. 

In the NJAC case, it was argued that the 99^th Amendment is only aimed at enabling accountability, transparency etc. in judicial appointments. The independence of the judiciary being a basic feature was undisputed. For the court, “the only issue [was] what is the permissible procedure or mechanism which would ensure establishment of an independent judiciary.” The petitioners argued that the independence of the judiciary is a ‘component’ of the basic structure of the Constitution and the process of appointment is an essential ‘element’ of such ‘component’. Could it then be said that this a question of what particular conception, i.e. the manner of judicial appointments, which the parliament is unbound to choose as long as it appeals to the abstract idea of ‘independent judiciary’? For the Union, yes, and this is how it seemed to defend the amendment. There too, apart from the original constitutional provisions, there was nothing explicit to show that parliament was bound by a particular conception of judicial independence. Confronted with this reality, the interpretation of the phrase ‘consultation’ became the lynchpin of the case, and the court consciously picked one interpretation over the other by relying on the Constituent Assembly Debates about how judicial appointments were originally envisioned.

Hence, while assessing whether a ‘conception’ or micro-level element is a part of the basic structure, courts will sometimes have to prefer one particular conception/means over the other, after assessing how the interpretation affects the broader principle enshrined within it.

If we are to accept that the Parliament has a free hand as long as it frames its justification of the amendments as merely an ‘alternative route’ or ‘enabling’ mechanisms towards abstract constitutional values, we are left in a state of limbo. A sample of this notion resonates throughout the majority opinions, in the over-significance accorded to the idea that ‘enabling provisions’ are excluded from the basic structure.

One response is given to us by Bhat. J:

The enabling provision in question’s basic premise, its potential to overbear the constitutional ethos, or overcome a particular value, would be in issue. The court’s inquiry, therefore, cannot stop at the threshold, when an enabling provision is enacted. Its potential for violating the basic structure of the Constitution is precisely the power it confers, on the legislature, or the executive. ….To view a newly added provision as only “enabling” can be an oversimplification in constitutional parlance. The court’s concern is not with the conferment of power per se, but with the width of it, lack of constitutional control, and the direct impact it can have on principles constituting the basic structure [¶157-9].

As long as we hold on to the idea that certain constitutional goals such as equality were to be realised through certain minimum guarantees enumerated in the text of the Constitution, we are, in effect, subscribing to a particularity: that not all pathways lead to realising that goal of equality. On the contrary, some may hinder its achievement. To be sure, basic structure challenges ought not to be simply challenges against misguided policy. The point is, and to rephrase Malvika Prasad’s statement, the ‘why’ and ‘for whom’ questions to preserve substantive equality/affirmative action must be equally central to the basic structure as the ‘how’ and the ‘what’ questions.

Having clarified this, I will now demonstrate that the context and intention of reservations are not irrelevant to the basic structure enquiry.

The Relevant Considerations

Context, intent, and purpose become important in a basic structure review. As it has been pointed out, “for determining whether a particular feature of the Constitution is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial.”  [ Indira Gandhi v. Raj Narain, affirmed in Nagaraj ¶30] While taking note of how reservations have been placed in Article 16, the Nagaraj court noted: “We have to go by what the Constitution framers intended originally and not by general concepts or principles.”

Secondly, the court also referred to Article 335. Does this mean that the constitutional amendment was bound by Article 335? Surely not. Nor did it say that Article 335 is a part of the basic structure. Rather, the court considered Article 335 relevant for its basic structure analysis of reservations. Accordingly, reservations as a facet of equality have to be understood “in the context of the placement of an article which embodies the foundational value of equality.” [ Nagaraj ¶30] 

Indeed, the 103^rd Amendment would not strictly be bound by the particularities of Articles 16(4) and 15(4); but to interpret whether the amendment is within the constraints of the broader principle of equality- the purpose of reservations, its underlying principles, and target beneficiaries need to be considered. That cannot be done in isolation without considering Articles 15(4) and 16(4). This was seemingly understood by the Nagaraj court when it called backwardness and inadequacy of representation as “constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse” [ ¶122], heavily relying on Indra Sawhney . Likewise, the observations in Indra Sawhney and NM Thomas, confirm that there is a clear exclusion of economic criteria (discussed here), not specifically limited to Article 16(4), but in deciding the essence of rights under Article 16(1) as a facet of substantive equality.

The Court’s Engagement

So far, I have shown the considerations that are indispensable to the court’s basic structure enquiry. Yet, the engagement and indulgence that the court makes are superficial and inadequate, especially when it considers the basic structure the only anvil on which the amendment is to be tested.

Maheshwari. J acknowledges that reservations are a form of compensatory discrimination which leads to substantive equality. [¶48] Articles 15 and 16 are facets of equality. [¶52.2] However, in his view, reservation is not a basic feature because it is an “exception to the general rule of equality”. [¶56] None of the various arguments regarding the alteration of the identity of substantive equality are engaged with (i.e., the width and identity test propounded in Nagaraj).

We know from NM Thomas and Indra Sawhney that framing reservations as an exception to equality is incorrect. For Iyer. J “reservation is but an application of the principle of equality within a class and grouping based on a rational differentia.”  [ NM Thomas at ¶162]  We are provided with two more broad reasons for upholding EWS reservations in principle:  that (i) the contours drawn in Indra Sawhney are irrelevant for this kind of new affirmative action based on income, and (ii) that such reservations are permissible under Articles 15 and 16, since it is based on the principle of ‘distributive justice’ under Article 46. [¶72-74 Maheshwari. J]

Once we agree that the context and purpose of reservations are relevant in deciding the validity of the EWS reservation, we can then identify three cumulative requirements.  Firstly, that the EWS is a class; secondly, such a class is ‘backward’; and thirdly, that the backward class is not adequately represented. 

Class v. Individual

Kartik Kalra has already suggested that the court should have undertaken a homogeneity analysis, i.e., a backward class receiving reservations must be similarly situated, homogenous and precisely delineated. However, the question is not whether the EWS has characteristics of homogeneity, but whether the EWS is a class at all. One of the petitioners contested this aspect by arguing that ‘PEWS are not a “class” but are a “section” comprising of all classes except the backward who are specifically excluded. This converts a class-based remedy to an individual one.’ This distinction is not engaged with in any of the opinions. 

On the other hand, Indra Sawhney understood backwardness in class terms. As per Sawant. J: 

… backwardness has to be a backwardness of the whole class and not of some individuals belonging to the class, which individuals may be economically or educationally backward, but the class to which they belong may be socially forward and adequately or even more than adequately represented in the services…It is further difficult to come across a “class” (not individuals) which is socially and educationally advanced but is economically backward or which is not adequately represented in the services of the State on account of its economic backwardness. [¶482]

This was a hurdle in the way of the court’s justification of an individual-based criterion of income. Sidestepping this, Maheshwari J. found that “the said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.” [¶72] 

Here, the court seems to be saying that these principles apply to reservations under Articles 15(5) and 16(4) only and are inapplicable to a new clause added on a new ground for affirmative action. As argued in the previous sections, these articles are essential and relevant for its basic structure enquiry.

When a reservation not covered under Article 16(4) is to be made, it must still cater only to ‘classes’. [Indra Sawhney at ¶246] The observations in Indra Sawhney draw the contours of the target group for reservations, which cannot be expanded through a different route. In other words, if Article 16(1) is a general principle and Article 16(4) an enunciation of substantive equality, then, what is prohibited under the former cannot be smuggled back in by inserting Article 16(6).  It defies the very idea of affirmative action intended by the reservation provisions (Articles 15 and 16) because the common thread that runs through them is the idea of class backwardness and under-representation. The sine qua non for providing reservation is the inadequate representation of the class concerned in the State services, and it is from this underrepresented class that a backward class is to be culled out. [ Indra Sawhney, ¶362] The question then, is whether the individuals part of the EWS are part of communities that are under-represented. Within the 8-lakh income bracket proposed under the EWS, these are mostly forward castes or castes that are already represented in the state, as shown by various studies. 

Defenders of the amendment relied on Nagaraj to argue that the ‘basic structure doctrine’ prevents only the destruction of the core identity of a principle such as equality, and not the enablement of the principle through a different route. On the contrary, Article 16(6) is not an enabling provision or a different route to realising equality. Rather, it modifies the rationale and targeted beneficiaries of reservations. In this sense, it alters the identity of the equality code, which is part of the basic structure ( see Malvika Prasad’s post, arguing that group-based reservations are essential to the identity of equality).

‘Compensatory Discrimination’ But for Whom?

The plurality opinion presumes that reservations are an ‘exception’ to equality, while nonetheless articulating the equality code in the substantive equality framework [see Ayan Gupta’s post]. The agreed principle is that substantive equality can be realized through ‘compensatory discrimination.’ [¶ 48] This means as a form of reparations, exclusive benefits to a target group can be granted by the exclusion of advantaged groups (that did not suffer discrimination). [¶82.1] But, for this to be a permissible discrimination of the ‘compensatory’ kind, it is obvious that the target beneficiary group must be one that has suffered historical discrimination/oppression, for which the compensation is being made. In other words, the validity of these benefits hinges on which target group one thinks deserves this compensation. But the answer to this question is already assumed – in the court’s view, EWS is a deserving category entitled to reservations simply because other backward classes have it.

 The court notes:

Suffice it to observe that the amendment in question is essentially related to the requirements of those economically weaker sections who have hitherto not been given the benefit of such an affirmative action (particularly of reservation), which was accorded to the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS reservation from the standpoint of backward class versus forward class is not in accord with the very permissibility of compensatory discrimination towards the goal of real and substantive justice for all. [ ¶75]

The petitioner’s objection that compensatory discrimination cannot be for the forward castes, is frowned upon. For Maheshwari. J compensatory discrimination is meant for all, and in a language tacitly implying the return to the formal equality conception, it does not matter whether you are forward or backward. 

Reservations for the Poor as ‘Distributive Justice.’

As has previously been argued here, reservation is envisaged as a reparation for identity-based historical oppression which cannot be equated with poverty. Knowing that it would be impossible to justify the EWS as a historically discriminated class entitled to reparation, the last straw the court is able to clutch on to is the ‘principle of distributive justice’. [¶74.1]  The court’s cited judgment [Lingappa Pochanna Appelwar v. Maharashtra 1988] that it relies on to define ‘distributive justice’, pertained to a challenge to the Maharashtra Restoration of  Lands to Scheduled Tribes Act, 1974 which provided for the restoration of possession of agricultural lands owned by tribals which had been transferred to non-tribals.

Justifying the enactment, the court noted:

16. . The present legislation is a typical illustration of the concept of distributive justice….Our Constitution permits and even directs the State to administer what may be termed ‘distributive justice’. …Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society…. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.

In the subsequent paragraphs, [ ¶74.1.1] Maheshwari. J concludes “the wide spectrum of distributive justice mandates promotion of educational and economic interests of all the weaker sections, in minimizing the inequalities in income.” 

Clearly, we can see the court has now proceeded to equate reservations as a poverty alleviation measure, a characterisation that the Indra Sawhney court categorically rejected. [Sawant. J, ¶482] To liken a land redistribution enactment with the EWS, shows the court’s limited understanding of ‘distributive justice’ and its conflation with remedial justice in the form of reservations. As we saw above, distributive justice is about the reallocation of wealth, property, and material resources. Neera Chandhoke argues that there is a difference between projects of ‘distributive justice’ that aim to reorganise ownership of economic resources equitably, and ‘remedial justice’ that recognises historical injustice and ensures benefits to a doubly disadvantaged community.  Reservations can provide reparations but cannot remedy deprivation and inequality, because remedial justice cannot replace redistributive justice.

This characterisation is implicit in the distinct purposes of Article 46 and reservations under Article 16(4), which was acknowledged in Indra Sawhney: 

… individuals belonging to the weaker sections may not form a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming a weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only is the concept of “weaker sections” under Article 46 different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. [Sawant. J ¶481]

Secondly, any kind of affirmative action measures under Article 46 will still be subject to the consideration of backwardness:

Article 46 emphasises the overriding responsibility and compelling interest of the State to promote the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes…This principle must necessarily guide the construction of Articles 15 and 16, All affirmative action programmes must be inspired by that principle and addressed to that end. Whether such action should be in the nature of preferences or by recourse to reservation is a matter on which the State must, by an objective evaluation of the degree and nature of backwardness and with reference to other constitutional principles, come to a conclusion. [ Indra Sawhney ¶300]

Distributive justice may have contested meanings, but it cannot be used as a blanket justification for interfering with the purpose of reservations. These justifications were discussed and rejected in Indra Sawhney, yet the observations are unengaged within Janhit Abhiyan. Even within an understanding that accords reservation the status of distributive justice, it can only be for those communities that have been historically disadvantaged socially. In any case, ‘minimizing income equality’ is not a legitimate aim for the purposes of Articles 15 or 16.

The Ghost of Efficiency

The Supreme Court has, in the past, considered the ideas of ‘efficiency of administration’ (used in Article 335) and ‘merit’ as opposing propositions [Devadasan v. Union of India ¶32]  and thus, Article 335 to be a limitation on Article 16(4). [Nagaraj  (¶ 108)] The Janhit Abhiyan majority, observing that “Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. [¶ 37.9, ¶92.5, Maheshwari. J] resurrects this erroneous perception. On the contrary, the Constituent Assembly Debates on the drafting of Article 335, (then Draft Article 296) reveal that it was not a limitation on the power to make reservations under Article 16(4), i.e., then Draft Article 10(3).

Hirday Nath Kunzru while discussing the scope of draft Article 10(3) noted that while Draft Article 10(3) used the term ‘backward classes’, Draft Article 296 used the phrase minorities. Minority communities could avail reservations only if they were found to be “backward”. Ambedkar then clarified that representation of SCs, and backward classes was to be specifically addressed under Article 10(3), while Article 296 made a reference for the consideration of the claims of minorities for reservations in appointments to services. In other words, that these served different purposes and Article 10(3) was independent of Article 296. [CAD, Vol. VII, Nov.1948]

Later, the Sardar Patel-led Advisory Committee claimed that after consultation with minority leaders, it was agreed that minorities would not be considered for reservations. The minority members protested that this agreement was only about waiving claims to reservations in the legislature, and not in employment.  The Drafting Committee then replaced the phrase ‘minorities’ with the phrase- ‘Scheduled Castes and Scheduled Tribes” in Article 335.

Some confusion arose from Article 320(4) which removed the need to consult the UPSC with respect to “the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335”. The intent behind this was self-explanatory: to disallow the UPSC to create obstacles for reservations. Kunzru explained that under Article 335, the State will consider the claims of SCs and STs, but it is  Article 16(4) that empowers the State in clear and “express terms”. Thus, while Article 16(4) equipped the State to make reservations for SC/STs, Article 320 was its consequence. Likewise, when Brajeshwar Prasad moved an amendment that “the maintenance of efficiency of administration shall be the only consideration” in relation to “appointment to services and posts in connection with the affairs of the union or of a state”,- it was rejected by the Assembly. [CAD vol. X, 14, Oct 1949] 

Accordingly, Anurag Bhaskar has argued that the Constituent Assembly “never made Article 16(4) subject to Article 335 or 320, rather accepted it as a stand-alone and overriding provision”. In Ambedkar’s view, representation was essential to efficiency. It was a metric of ‘good governance’ not despite the representation of backward castes, but because of their representation. Thus, ‘efficiency of administration’ as mentioned in Article 335 was not envisioned to be a limitation to reservations.  This was later echoed in BK Pavitra II, which   Janhit Abhiyan court avoids citing. The Supreme court in BK Pavitra (II), noted:

… efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.

This has also now been confirmed by various studies that reservations in employment do not dilute efficiency in any way, but rather enhance it.

The Ten-Year Time Limit

The second manner in which the Janhit court reproduces the stigma of reservations and caste is by reiterating the myth of the time limit on reservations in Article 16.

Pardiwala. J claims that, “The idea of Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only ten years.”  [ ¶190] No reference or context is given for this statement by Ambedkar.  Similarly, Trivedi. J does not shy away from claiming that “at the end of seventy-five years of our independence, we need to revisit the system of reservation in the larger interest of the society as a whole”, and  the phrase “transformative constitutionalism”, is added for good measure.

Previous court decisions have also shown their inclination towards an endpoint in reservations. In K.C Vasanth Kumar, as per Desai. J “reservation must have a time span otherwise concessions tend to become vested interests”. Later, in Ashok Kumar Thakur v Union of India  the court noted:

Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste divided society permanently… Any provision for reservation is a temporary crutch…

The time limit myth arises from the Poona Pact negotiations, where Gandhi and Ambedkar could not agree on the time period after which a referendum on separate electorates for depressed classes could be held. After much deliberation, the final clause stipulated that the reservation of seats in provincial and central legislatures “shall continue until determined by mutual agreement between both the communities concerned in the settlement”, i.e., Caste Hindus and the Scheduled Castes. This fixed time limit was not to end reservations in joint electorates, but rather an initial limit after which the position of joint electorates with reservations would be merely reconsidered. 

However, after the partition, some leaders in the Constituent Assembly sought to do away with political reservations for all minorities. When Ambedkar walked out of the proceedings, the Patel-led Advisory Committee reconsidered its position. It carved out an exception for SCs, noting “the peculiar position of the Scheduled Castes would make it necessary to give them reservation for a period of ten years”. As Ambedkar was outnumbered, this later went to become Article 334, despite some members objecting. Monomohan Das pointed out that if these safeguards were to cease in ten years, it could only be “after consideration of the situation then of the Scheduled Castes, and the Scheduled Tribes”.  Although, the Constituent Assembly fixed a time limit of ten years on political reservations and only in that context, Ambedkar himself prescribed the method of the constitutional amendment to extend this time limit; if the situation of SCs and STs did not improve (for Bhaskar’s full discussion see here).

On the other hand, the Parliament debates show that when the first constitutional amendment of 1951 inserted Article 15(4), there was no discussion on the time limit. Similarly, there was no discussion during the drafting of Article 16(4), either. Thus, there is nothing to suggest that reservations in education and public employment were intended to be abolished after ten years.

Conclusion

The net effect of the judgment is that it reproduces the timeless harangue against reservations by showing a false conflict between reservation and ‘efficiency’, by legitimising the myth of the ten-year time limit, and packaging a measure largely benefitting the already represented forward castes as a form of distributive justice. These need not be seen as mere “intellectually suspect, conceptual confusions.” It is the judicial enablement of an “upper caste revolt“:  a class which has historically frowned at reservation for being contrarian to merit, now claiming victimhood, through an individualised income basis. 

The Kenyan High Court on Forced Sterilisation, Informed Consent, and Constitutional Damages

In a judgment delivered on 16th December 2022 (L.A.W. vs Marura Maternity and Nursing Home), the High Court of Kenya handed down some interesting findings with respect to informed consent to medical procedures, as well as the important issue of constitutional damages enforceable against private parties.

The facts, in brief, were as follows: in 2006, when the Petitioner was pregnant with her second child, she visited a health centre for an ante-natal check-up, and was found to be HIV-positive. A nurse at the Baba Dogo Health Centre advised her not to have more children, in the interests of her own health, as well as the life of the baby. Subsequently, she was referred to a community health worker at Karogocho, who gave her two vouchers titled “CS” and “TL”, and told her to use them at the Marura Maternity and Nursing Home (Respondent No. 1), when she was due for delivery. The Petitioner did so, and after a Caesarean section operation, successfully gave birth. Soon after, the Petitioner lost her husband. She remarried in 2010, but found that she was unable to conceive. On visiting a medical camp, she was told that her fallopian tubes had been blocked. On enquiries, it turned out that “TL” stood for Tubal Ligation, and it was at the Respondent No. 1’s clinic where this procedure had been carried out on her. The Petitioner, therefore, sued.

Before the High Court, it was not in dispute that the Tubal Ligation process was performed on the Petitioner, permanently depriving her of the ability to bear children. This implicated several rights under the Kenyan Constitution: the right to the highest attainable standard of health, including the right to reproductive healthcare (Article 43), and other rights such as the rights to family, dignity, privacy, non-discrimination etc. The positive obligations under Article 43 required “the State to inter alia develop health policies, legislate on health, building and equipping hospitals, employ qualified health professionals and facilitate their training from time to time.” (para 59) In partial fulfilment of these positive obligations, the State had enacted the Health Act of 2017, which mandated full and complete information regarding the provision of healthcare services to those affected.

Having thus established the constitutional and statutory framework, and the rights at stake, the key question before the Court was whether the petitioner’s informed consent had been taken for performing the TL process. This was because the Health Act – which, according to the Court, stood at the level of a constitutional statute (para 169) had specifically set out a definition of ‘informed consent,’ which, in turn, had been further specified in The Kenyan National Patients’ Rights Charter. According to the Charter, the right to informed consent to treatment entailed:

To be given full and accurate information in a language one understands about the nature of one’s illness, diagnostic procedures, proposed treatment, alternative treatment and the cost involved for one to make and decision except in emergency cases … the decision shall be made willingly and free from duress. 

Relying upon this framework, the Mrima J then made the following important observation:

It is indeed a fact that in most cases there is a grave imbalance of knowledge and information between the healthcare provider and the person receiving the professional services. As such, a healthcare provider is under an obligation to ensure that such information is accurately broken down and communicated to the patient and in a language that the patient or user understands. (paragraph 176)

This passage is important, as it lays down both the burden of proof and the standard of proof for informed consent. Because of the institutional difference of power between the healthcare provider and the patient, the burden of eliciting informed consent lies upon the former, and in order to do so, they must ensure accurate and effective communication in a manner that is intelligible to the patient, based on their socio-economic circumstances. The Court also noted that these principles, in effect, had been codified in Sections 8 and 9 of the Health Act (paragraphs 177-180), and were in line with international best practices (paragraphs 181-187).

Applying these principles to the case at hand, the Court found that during the TL procedure, the surgeon “asked [the petitioner] whether she knew she was being sterilized and she answered in the affirmative” (paragraph 195), but nothing more. During cross-examination, the petitioner stated that she had not been informed that the procedure was irreversible (paragraph 197).

On the basis of this, the Court found that there was no informed consent. In particular:

[The Petitioner’s] low level of literacy and understanding of family planning options and health generally imposed upon healthcare providers a high legal duty to facilitate her consent … they had the obligation to break down and convey in a language she understood the information as to what BTL entailed in the first place, its implications and check to ensure that she had understood what was the procedure was all about … in addition, the healthcare provider had a legal duty as required under Sections 8 and 9 of the Health Act to explain to her the available alternatives of family planning. (paragraphs 204-206).

The casual manner in which the petitioner had been asked if she knew that she was being sterilised (without more context), the sketchy consent form itself, and no further evidence tendered on how the consent was procured, therefore persuaded the Court that the required threshold had not been met, and consequently, the Petitioner’s constitutional rights had been breached.

This, then, brought the Court to the question of remedies. In the present case, the Petitioner’s rights had been violated by two private, non-State bodies – i.e., the two clinics involved. The Court noted that:

As is the case in constitutional Petitions, there are arrays of available remedies. What a Court endeavours to do upon confirming of any infringement is to grant an appropriate remedy. Even in instances where a party fails to ask for a specific relief, a Court, depending on the nature of the matter ought to craft an appropriate relief. (paragraph 244)

The appropriate remedy, the Court decided, was constitutional damages, which it proceeded to grant.

In my view, however, the basis for the remedy was left somewhat unclear. In paragraph 248, the learned Judge referred to his prior judgment in Patrick Alouis Macharia Maina, and relied upon the doctrine of constitutional tort. A perusal of Patrick Alouis, in turn, reveals that the basis of the constitutional tort doctrine is the Court of Appeal judgment in Gitobu Imanyara vs Attorney-General. Gitobu Imanyara, however, was a case involving State action, and the doctrine of constitutional tort was invoked as a public law remedy to deal with cases where, in essence, the State’s tortious action leads to a violation of constitutional rights. The doctrine of constitutional tort is not normally used in cases of private violations of constitutional rights.

That is not to say that the remedy couldn’t have been granted. However, I believe that to do that required the Court to use the bridge of Article 20 of the Constitution, which applies constitutional rights horizontally, against private parties. While the text of Article 20 is unbounded – it applies constitutional rights horizontally in all cases – the Kenyan courts have, through interpretation, narrowed its scope (see this paper) – in particular, to cases of serious constitutional violations, where alternative remedies are do not exist or are inaccessible. In my view, both conditions were met in this case. Now, once Article 20 was called into play, and the rights in question held to apply horizontally, it would follow that the doctrine of constitutional tort could be likewise incorporated, as the doctrine is agnostic towards the nature of the duty-bearer once the violation of rights has been established. The proposed solution, thus, would require the Court to (a) demonstrate the applicability of Article 20 under existing Kenyan jurisprudence, and (b) having done so, transplant the constitutional tort doctrine from the vertical to the horizontal context – instead of directly invoking constitutional tort.

In sum, therefore, the judgment of the High Court makes important strides in the context of informed consent in situations of vulnerability, and constitutional damages for breach of the same; where it arguably comes up short is in a full articulation of how and when the constitutional tort doctrine applies to private parties, via Article 20. That might be for a case for another day!

Same-Sex Marriage Before the Supreme Court: Three Issues

Today, the Supreme Court issued notice on a batch of petitions seeking the recognition of same-sex marriages under the Special Marriage Act of 1954 [“SMA”]. Section 4 of the SMA refers to a marriage between “two persons.” Section 4(c) states, however, that a marriage may only be solemnised if “the male has has completed the age of twenty-one years and the female the age of eighteen years”, implying that an SMA marriage must necessarily be between a man and a woman. The PIL petitions challenge this implicit exclusion of same-sex couples from solemnising their marriages under the SMA.

This post will flag three issues that arise in these petitions.

The SMA as Secular Law

The scope of the challenge makes this an extremely straightforward case – arguably even more straightforward than the Supreme Court’s decriminalisation of same-sex relations in 2018. There is little doubt that the provisions of the SMA discriminate on grounds of sexual orientation, and therefore violate Articles 14 (equality before law) and 15(1) (non-discrimination on grounds of sex) of the Constitution (as held in Navtej Johar). Additionally, they infringe the Petitioners’ right to privacy and decisional autonomy under Article 21. To save the SMA, then, it must be shown that the restriction of constitutional rights is for a legitimate State purpose, and is proportionate.

If we look at same-sex marriage cases around the world, we find that there is essentially one argument that is open to the State: that marriage, properly defined, must be between a man and a woman is a deeply embedded cultural (and religious) norm, which is articulated through law. This – according to the State – is the basis of legally defining the institution of marriage in this way, and justifies denying same-sex couples the right to participate in it.

Whatever the merits of this argument in general, it is inapplicable to the SMA. This is because the SMA is explicitly framed as a secular law, which is open to people who do not want to get married under applicable personal laws (including in the case of inter-faith marriages). Not only is this evident from the history of the SMA, but the long title itself stipulates that it is “an Act to provide a special form of marriage in certain cases.” Religious or cultural conceptions of marriage, therefore, do not constitute the bases of the SMA; indeed, the SMA establishes a legal form of marriage that is an exception to marriage grounded in personal laws. Once this is understood, it is clear that the only argument open to the State – that marriage needs to be defined a certain way because it is a cultural/religious institution – is immediately undermined. Indeed, if the Court was to grant the petitioners’ prayers, it would be legalising same-sex marriage only under the aegis of the SMA; under personal law, marriage would continue to be defined as it has been.

For this reason, the case – so long as it is restricted to the SMA – presents a very straightforward, interpretive issue before the Court, which can be resolved in an equally straightforward manner.

The SMA as a Double-Edged Sword

The narrow scope of the challenge, however, raises certain questions about efficacy. Notoriously, the SMA places serious procedural hurdles before couples who want to get married under its aegis. Section 5 of the SMA requires a “notice” of an intended marriage to be given thirty days in advance, to the Marriage Officer. According to Section 6, this notice is to be published in a Marriage Notice Book (open to inspection), and to be “affixed in a conspicuous place” by the Marriage Officer. Section 7 authorises “any person” to object to the marriage within thirty days on the ground that the Act’s preconditions have been violated, following which, the Marriage Officer can refuse to solemnise the marriage if they deem fit (section 8).

This schematic description of the SMA should be enough to show that its viability as an option is inversely proportional to your social power. Indeed, studies of the SMA have repeatedly shown that the thirty-day notice period and the “affixation” of the notice in a “prominent place” facilitates social pressure upon vulnerable couples, especially in the context of inter-caste and inter-faith marriages. Indeed, the perversity of the SMA lies in the fact that those who will need to use it will – often – be precisely the kinds of couples who will need the shelter of anonymity: couples marrying against the wishes of their families, especially under the shadow of threats of violence and ostracism. It is to these couples that the SMA denies what they most need.

Thus, were the Supreme Court only to interpret the SMA to allow same-sex marriages, it would no doubt be an important move, but also, its benefits would be unequally distributed. Just like the SMA has failed inter-caste and inter-faith couples in the past, it will fail queer couples who circumstances make them vulnerable to social pressure and stigma.

The challenge, thus, is incomplete: in order to guarantee the full and effective enjoyment of constitutional rights, the Supreme Court ought also to interrogate the structure and design of the SMA, and to ensure that any consequential orders it passes are meaningful for the entire spectrum of the community. While the petitions may not categorically raise this point, it is of course open to the Court – in a constitutional case – to craft its own remedy.

A Note About Procedure

Finally, a quick point about procedure: cases asking for the recognition of same-sex marriages under the SMA have been pending before the Kerala and Delhi High Courts for a while. Today, when the Chief Justice pointed this out, it was argued that the state government intended to file an application for the transfer of all pending cases to the Supreme Court. The Chief Justice then issued notice.

However, whether or not the government was going to file for a transfer to the Supreme Court, in my view, there is merit to allow constitutional courts that have already been seized of an issue, to hear it; not only does this respect the comity of courts and the structure of the judiciary, but also, allows the Supreme Court to have the benefit of (one or more) reasoned High Court judgments when it finally considers the issue. Previously on this blog, I have criticised the Supreme Court’s tendency to pick up ongoing challenges before High Courts and hear them itself – effectively bypassing a crucial constitutional forum. Admittedly, this critique has come in the context of the Supreme Court stopping High Courts from hearing cases and then delivering judgments in favour of the State; at the same time, though, the force of the critique does not depend upon outcomes. Indeed, if we’re to look at this in a principled way, we have to critique the Supreme Court for bypassing procedure, especially in cases where the outcome is one that we agree with.

In my view, therefore, it would have perhaps been more appropriate for the Court to stay its hand, while requesting the Kerala and Delhi High Courts to decide the matter expeditiously (as it does raise important constitutional issues). Nonetheless, that said, we are here now; and one may look forward to a thoughtful and reasoned judgment in this case in the next few months.

Guest Post: Equality as Non-Exclusion: Justice Bhat’s Dissent in the EWS Case

[This is a guest post by Kieran Correia.]

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The Supreme Court recently handed down a split verdict in Janhit Abhiyan v Union of India, upholding the 103^rd Amendment to the Indian Constitution. The Amendment, in the main, enabled affirmative action for economically weaker sections (EWS), defined by an annual family income of less than Rs 8 lakhs. The verdict cleaved along two issues, with all five justices agreeing on two questions—that reservations grounded solely in ‘economic criteria’ do not violate the basic structure of the Constitution and that reservations can be extended to unaided private educational institutions. The justices disagreed over the third issue: whether the Scheduled Castes, Scheduled Tribes, and the backward classes could be excluded from the scope of EWS reservations.

The Amendment was upheld by Maheshwari, Trivedi, and Pardiwala JJ—all tendering separate, concurring opinions. In dissent was Bhat J, with whose opinion Lalit CJ agreed. Justice Bhat’s opinion is significant for (re)articulating a vision of equality—threading various constitutional articles together into a recognizable ‘identity’—that is fundamentally non-discriminatory and non-exclusionary. Bhat J’s opinion suffers from one constitutional infirmity, which we will examine briefly. But the bulk of this post will examine the rest of the sole opinion that continues, for now in dissent, a long tradition of reading the Constitution in a manner faithful to its purpose.

Non-discrimination and non-exclusion as part of the ‘basic structure’

Since the Court was reviewing a constitutional amendment, it would have to deploy basic-structure review. While hardly perfect, the ‘basic structure’ has come to stand in for India’s constitutional identity—at least as perceived by the courts. The basic structure doctrine was introduced in the now famous Kesavananda Bharati case. In broad strokes, it encapsulates the idea that there are certain features of the Constitution—which have gradually grown through the years—that are unamendable by Parliament. The Court views these facets as so integral to this Constitution that Parliament—even with a special majority—cannot ‘damage or destroy’ them. In other words, this small constitutional pantheon of ideas and practices are inseparably sewn into the fabric of the Constitution; to do away with the basic structure is to do away with the Constitution itself.

Justice Bhat starts off with the point of dissent—whether the exclusion of SCs, STs, and the backward classes is constitutionally permissible. The Union did not disagree over whether the Amendment was exclusionary. Instead, the contention was that it did not “damage or destroy” an element of the basic structure—in this case, the Equality Code.

Bhat J begins by analysing the Equality Code (which he takes to include articles 14 to 17 of the Constitution). He sees the Code as something beyond a set of abstract platitudes; instead, it is an explicit non-discriminatory injunction against the state, which can be directly invoked against discrimination prevalent in society. The judgement locates this Code in the context of a country that is still highly stratified along caste lines and that continues to deny opportunity to individuals solely based on the caste into which they were born. The Constitution’s framers explicitly sought to combat the exclusion this system engendered, and this formed the basis of the Equality Code.

This was the outcome, Anupama Rao tells us, of a long period of organizing, first forged in the complex negotiation between colonial modernity and anti-caste activism towards the end of the nineteenth century. BR Ambedkar was able to take advantage of this and establish dalits as a class of people especially deserving of state protection, leading to the non-discrimination charter inscribed in the Constitution that specifically proscribes caste discrimination. This, moreover, was a positive duty, not merely a negative injunction. The Constitution’s drafters, Bhat J observes:

… went to great lengths to carefully articulate provisions, such that all forms of discrimination were eliminated … to ensure that there was no scope for discrimination of the kind that the society had caused in its most virulent form in the past, before the dawn of the republic. These, together with the affirmative action provisions … was to guarantee that not only facial discrimination was outlawed but also that the existing inequalities were ultimately eliminated [sic]. (emphasis author’s) (para 60)

The Constitution thus understood equality in terms of non-discrimination and non-exclusion. This is, of course, nothing new. Perhaps the most emphatic statement on this came in 2009, when the Delhi High Court read down section 377, which criminalized consensual homosexual intercourse. The HC, Gautam Bhatia observes, merged the Constitution’s guarantees of equal protection and non-discrimination, reordering our understanding of equality into one framed in the language of non-discrimination.

If this was all Justice Bhat did, it would be far from novel and fall far short of what it had set out to do. The next phase Bhat J embarks on—necessary to evaluate a constitutional amendment—is to read this vision of equality into the basic structure. Since this was the first time the State exercised its constituent amending power to ‘practice exclusion of victims of social injustice’, it presented an opportunity for the Court to hitch the principle of non-discrimination to equality. As Justice Bhat reasons:

[T]he irresistible conclusion is that non-discrimination—especially the importance of the injunction not to exclude or discriminate against SC/ST communities [by reason of the express provision in Articles 17 and 15] constitutes the essence of equality: that principle is the core value that transcends the provisions themselves; this can be said to be part of the basic structure. (para 77) (emphasis author’s)

What Justice Bhat is doing here is rearticulating the basic feature of equality in the grammar of non-discrimination. This—by its very nature—sets out a different vision of our constitutional identity, one in line with the framers’ intentions. By placing the principle of non-discrimination on the highest pedestal, Bhat J is essentially arguing that it lies at the very heart of the Constitution; not even Parliament can abrogate that.

Importing article 14’s test into basic-structure analysis

After ensconcing this imagination of equality into the basic structure, Justice Bhat makes, in my view, the misstep of importing the ‘reasonable classification’ test—a relic of an older, more formalist equality jurisprudence. The main issue here, however, is the Court’s confusion of basic-structure analysis with statutory analysis.

The Court has, in the past, engaged in testing the reasonable classification underlying an amendment. In Indira Gandhi v Raj Narain, for example, Chandrachud J (as he then was) analysed the constitutionality of the 39^th Amendment—which Mrs Gandhi’s government introduced to shield her legally contested election from judicial scrutiny—through the prism of reasonable classification. In so doing, he reduced the feature of equality, which he recognized as part of the basic structure, to article 14 and, logically, extended article 14’s test to the basic structure.

This, as Sudhir Krishnaswamy argues, is a flawed approach. The basic structure of the Constitution is not reducible to individual articles; as Mathew J’s opinion in the same case highlights, basic features must be woven out of a broad range of articles. The Kesavananda case clearly did not locate the basic features it identified—constitutional supremacy, secularism, and so on—in individual articles; indeed, they could not be. The abstraction of the basic structure in the language of principle—as its critics would agree—is the point.

Bhat J’s choice to do so here is, with respect, all the more baffling when he acknowledges that the reasonable classification doctrine is not part of the basic structure (para 78). While his analysis eventually yields the result that the Amendment violates the test, this mode of enquiry is constitutionally suspect, at the very least, in examining an amendment. Instead, his enquiry should have only been whether the amendment ‘damages or destroys’ the basic structure—which, we will see, he eventually leads to.

Resolving the individual–community dialectic

The opinion then moves on to the subject of the Constitution’s affirmative action provisions—the individual or the community. Bhat J makes a two-pronged argument here: reservation policies are made on the basis of community (i.e., caste groups) but for the benefit of the individual. The application of this understanding of compensatory discrimination runs against the logic underlying the EWS reservations.

First, the EWS reservations use economic criteria—namely, family income—as the proxy for ‘economic disadvantage’. The petitioners contended, and Justice Bhat agreed, that poverty is an individual disadvantage, in the sense that it is not reducible to ascriptive identity—for example, caste—even though it is the result of structural features in the economy. As he avers:

[The] goal of empowerment through ‘representation’, is not applicable in the case of reservations on the basis of economic criteria—which as the petitioners laboriously contended, is transient, temporary, and rather than a discernible ‘group’, is an individualistic characteristic [sic] (para 97).

This is juxtaposed with caste, which, as Bhat J earlier recognized, is a group disadvantage. The inequalities the Constitution sought to extirpate were inequalities generated by caste structures that limit the potential of an individual based on an accident of birth. Caste—Ambedkar famously defined it as an ‘enclosed class’—cannot be transient or temporary. Poverty’s transience, therefore, is important when we remember that reservations are primarily a tool for securing representation in institutions to groups historically denied this right.

Secondly, however, Justice Bhat emphasizes that the right (to equality, non-discrimination, and so on) is conferred on—and for the benefit of—the individual. A Scheduled Caste woman, therefore, who meets the criteria under the newly inserted clauses would be individually discriminated against through the exclusion principle at work here—solely because she belongs to a Scheduled Caste.

Exclusion as violative of the basic structure

Bhat J then segues into what should have been the mode of enquiry under his basic-structure review: whether the amendment reaches the level of ‘offending or damaging the very identity of the Constitution’ (para 99). A constitutional amendment is unlike ordinary legislation; once made, it is part of the Constitution itself. Therefore, it merits a higher standard of review—the ‘destroy or damage’ test Kesavananda originally laid out—that must view the impugned amendment against the backdrop of the identity of the Constitution.

Importantly, Justice Bhat finds that this high threshold is met. The exclusion of groups the Constitution markedly set out to protect damages the Equality Code of the Constitution. As he sums up:

The exclusion of those sections of society, for whose benefit non-discriminatory provisions were designed, is an indefensible violation of the non-discrimination principle, a facet that is entwined in the Equality Code, and thus reaches to the level of offending or damaging the very identity of the Constitution (para 99).

He goes on to rebuke the Union’s disingenuous framing of SCs/STs/backward classes as people already benefitting from affirmative action policies—and therefore undeserving of consideration in the EWS category. These groups are beneficiaries of compensatory discrimination meant to remedy centuries of marginalization at the hands of an order which deemed them less than equal. The exclusion inherent in ‘other than’, in the newly inserted clause, ‘strikes at the heart of the Equality Code.’

What next?

The Court has continued its trend of according deference to the Union when it comes to reservation policies. Many of the majority opinions contain disturbing obiter that run counter to the idea of equality the Constitution envisions; the dilution of reservations meant to rectify centuries-long discrimination seems the logical culmination. Bhat J’s dissent—in striking opposition—articulates a transformative vision of our constitutional identity, one that is anchored to a history of striving to ensure oppressive structures are relics of the past. But for now, its wisdom will be left to another set of lawyers and activists to reclaim.

Guest Post: Abortion and Equality – Building Upon the Supreme Court’s Judgment in X v NCT

[This is a guest post by Gauri Pillai.]

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The Supreme Court’s decision in X v NCT Delhi has received much acclaim. At the minimum, it threw open the doors of India’s law on abortion to unmarried women who experience a change in relationship status, doing away with the archaic assumption that sexuality is (and ought to be) confined to the institution of marriage. At the same time, it was an ‘omnibus decision’, touching upon—though not fully resolving—a range of issues, of concern not just to India’s law on abortion but implicating a wider network of intersecting legal frameworks.

Some of these issues are the following: the Court interpreted ‘grave injury to mental health’—a condition for abortion within the Medical Termination of Pregnancy Act 1971 (MTPA)—broadly, going beyond mental illnesses to highlight the severe harm to mental health from being compelled to carry to term any unwanted pregnancy. The Court also identified the ‘chilling effect’ the criminalisation of abortion within the Indian Penal Code 1860 (IPC) places on the interpretation of the MTPA. Further, the Court suggested that rape, under the MTPA, includes marital rape, which is otherwise exempted from the IPC definition of ‘rape’. The Court also took steps towards diluting the requirement to mandatorily report child sexual offences under the Protection of Children from Sexual Offenses Act 2013, in light of its impact on adolescents’ access to abortion. The Court included within its definition of ‘woman’ persons other than cis-gender women who may also require access to safe abortions. Finally, the Court placed positive duties on the State to remove barriers restricting access to abortions. The Court thus took several crucial first steps in reimagining India’s law on abortion, laying the ground for future interventions on these themes. In this blog post, I make a case for where the Court could possibly go next.

The Court anchored its range of holdings, in part, within ‘core constitutional rights’. As the Court made clear, ‘certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the MTP Act and the MTP Rules’. The Court, then, drew out the constitutional conceptions of ‘decisional autonomy’, ‘privacy’, ‘dignity’ and ‘bodily integrity’, emphasising how these values require that women’s abortion decisions be both respected and facilitated.

Equality is a value that the Court mentioned in its initial framing. However, it receded somewhat in the Court’s later analysis. Of course, equality was front and centre in the Court’s holding that the distinction between married and unmarried women in accessing abortion is unconstitutional because it ‘promotes the stereotype…that only married women indulge in sexual intercourse’. However, do restrictive abortion laws (like the MTPA) raise broader equality concerns? Do they discriminate on ground of sex? These questions have not often been asked—and, as a result, answered—within constitutional accounts of abortion (or reproductive rights more generally) in India. X v NCT Delhi is no exception to this trend.

Here, I make a preliminary attempt to answer these questions. In Part I, I lay out the conception of equality which is capable of supporting a claim of discrimination in relation to abortion. In Part II, I detail how a discrimination law case can be built against India’s law on abortion and the key contributions of a discrimination law lens.

Part One: Conceptions of Equality

Broadly, there exist two competing conceptions of equality. Formal equality is modelled on the Aristotelian maxim to treat likes alike, meaning that dissimilar treatment of dissimilar classes fails to raise concerns of equality. Under a formal equality account, restrictive abortion laws do not discriminate on ground of sex. Pregnancy is seen as automatically rendering women different from men. As a result, treating women differently (by requiring them to carry a pregnancy to term) does not trigger a sex equality violation. Thus, formal equality’s search for sameness and exclusion of difference translates into an automatic rejection of claims of sex discrimination when they involve pregnancy. Moreover, all formal equality offers similar classes is identical treatment. It fails to recognise that sometimes differential treatment—for instance, workplace accommodations for pregnancy—is necessary to achieve equality. As a corollary, a law treating similar classes identically but having a disproportionate adverse impact on members of some groups falls outside the radar of formal equality. Thus, formal equality concerns itself with treatment under the law, or the law’s facial form, rather than its impact.

In contrast, substantive equality abandons sameness-difference as its operating paradigm. This comes from the recognition that formal equality is an impoverished account of equality, especially for members of disadvantaged groups. By dismissing claims of sex discrimination on the ground that the sexes are differently situated in matters of reproduction, formal equality ‘rationalizes differential treatment of the sexes as legitimate and as merely “reflecting” the fact of biological difference’. Under this model, refusing to hire a pregnant woman would thus not amount to sex discrimination because pregnant women are seen as different from men. Formal equality also easily maps onto existing social hierarchies, ‘ratifying rather than challenging them’: ‘the worse the inequality gets, the more disparate its social reality becomes, the less this legal approach can do about it, hence the more [it] operates to institutionalise it’. For instance, consider a rule promoting only full-time employees. The rule would disproportionately exclude women who often work part-time to balance paid work with their childcare responsibilities. Formal equality would, however, uphold the rule because it sees part-time employees as different from full-time employees when it comes to promotions, therein reinforcing existing social inequalities which hold women alone responsible for childcare.

Moving away from sameness-difference, substantive equality no longer asks whether women are similar to or different from men in assessing an equality claim. Instead, substantive equality’s central inquiry is whether the rule or practice in question perpetuates group-based disadvantage, in which case it falls foul of the equality guarantee. As a result, difference—here, pregnancy—no longer operates as a headwind to an equality claim. This crucial shift lays the ground for pregnant women to bring a claim of discrimination against a law which perpetuates their disadvantage. Substantive equality also recognises that identical treatment alone fails to guarantee equality. Treating men and women identically may, in some cases, have the effect of perpetuating women’s disadvantage. If so, substantive equality allows, or even requires, forms of differential treatment to redress disadvantage. Thus, substantive equality concerns itself with the impact of the law rather than its form.

India’s constitutional conception of equality is substantive, as has been acknowledged by the Supreme Court (see here and here). First, it centres disadvantage, rather than sameness-difference. We see this in the specific grounds listed under Articles 15(1) and 16(1)—sex, religion, caste—which have been sites of historical group-based disadvantage, representing ‘past ways in which people have been marginalized and oppressed’. We also see it in the explicit mention of disadvantaged groups under Articles 15(3), 15(4), and 16(4)—women, children, Scheduled Castes and Tribes. Second, it aims to redress these forms of historical disadvantage—eliminate ‘age-long disabilities and sufferings’, and abolish ‘social inequity, the social stigma and the social disabilities in our society’—to achieve ‘real equality’ amongst members of groups. Third, to achieve such ‘real equality’, it both prohibits certain forms of differential treatment—for instance, untouchability or exclusion from the public sphere—and allows other forms differential treatment—for instance, ‘special provisions’ for women. Finally, it understands disadvantage multi-dimensionally, including stigma, denial of participation and socio-economic disadvantage on account of group membership.

In Part II of this blog, I apply this constitutional conception of equality to mount a discrimination law challenge against India’s law on abortion. For now, I consider a claim of sex discrimination, though a claim of intersectional discrimination may also be brought.

Part II: Bringing a Discrimination Law Lens to Abortion

Establishing a Discrimination Claim

From the constitutional core of substantive equality, in assessing if a law is discriminatory, India’s equality and non-discrimination guarantee asks:

[Does] the impugned Rule disproportionately [affect] a particular group? [Does] the law [have] the effect of reinforcing, perpetuating, or exacerbating disadvantage? Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.

Restrictions on abortion within the MTPA affect women as a group wholly, or pregnant women as a group disproportionately. They deny women reproductive decision-making by allowing access to abortion only when certain conditions are satisfied within specified time limits. Whether these conditions have been met is assessed by doctors (not women). The MTPA exists as an exception to the criminal prohibition on abortion within the IPC. As a result, doctors interpret the conditions within the MTPA narrowly, fearing the threat of criminal sanction, a factor the Court noted in its judgment.

The cumulative effect of India’s law on abortion is, then, to perpetuate or exacerbate women’s historical disadvantage along the different dimensions. Being denied an abortion often forces women to bring up a child within a patriarchal system where they bear unilateral responsibility for childcare, which is devalued within and outside the home. Due to their childcare responsibilities, women are excluded from the public sphere (say, from employment), or are required to work the ‘double day’, shaping the nature and extent of their participation outside the home. This leads to their economic exclusion, heightening their economic disadvantage. Further, the denial of reproductive decision-making within the MTPA is based on stereotypes about women as mothers and as incompetent decision-makers. The law on abortion, then, entrenches these stereotypes, influencing social perceptions about women as a group. Being denied abortions also harms women physically. As noted by the Court, it requires women to either carry the pregnancy to term—with its onerous physical responsibility—or approach unsafe, backstreet abortion providers. Either way, their physical health is adversely affected, in many cases threatening their life. Unsurprisingly, unsafe abortions are the third largest cause for maternal mortality in India. Denial of abortion, moreover, harms women psychologically. As the Court recognised, ‘any unwanted pregnancy…[has] a deleterious effect on mental health’ of the woman. These effects of the law also have to be viewed in light of women’s systematic, historical disadvantage. As was repeatedly recognised in the Constituent Assembly, ‘the average woman in this country has suffered now for centuries from inequalities heaped upon her by laws, customs and practices of people’. If so, a law like the law on abortion, which perpetuates centuries of inequalities experienced by women, would fall foul of the equality guarantee under a substantive conception of equality.

Contributions of a Discrimination Law Lens

What changes, when a discrimination law lens is introduced to assess a violation of reproductive rights? At the outset, discrimination law immediately locates the individual within the group(s) to which she belongs, identifying that ‘it is the individual’s group membership [which] is the terrain upon which social disabilities operate’. Discrimination law, then, recognises that restricting abortion denies reproductive decision-making to women: a group which has a history of disadvantage emerging from, amongst other things, meanings attached to their reproductive ability. Seen against this history, restricting abortion is not simply an act which severely harms the individual woman’s decisional autonomy, dignity and bodily integrity, as the Court identifies in X v NCT Delhi. Rather it is also an act which forms a part of an abiding historical pattern, often occurring because of group membership. That is, in being denied abortion, the woman is harmed not only as an individual but also as a member of a group, in turn cementing the group’s overall disadvantage.

This perspective heightens the extent of constitutional rights violations the Court already identifies. That it is women to whom decisional autonomy, dignity and bodily integrity are being denied magnifies the harm from such denial, making it that much more egregious. On this point, consider Dorothy Roberts’ account of the  prosecution of pregnant women addicted to drugs in the United States, many of whom are black. Roberts powerfully argues:

The harm caused by the prosecution of crack addicted mothers is not simply the incursion of each individual crack addict’s decision-making; it is perpetuation of a degraded image that affects the status of an entire race. The devaluation of a poor black addict’s decision to bear a child is tied to the dominant society’s disregard for the motherhood of all black women. The diminished value placed on black motherhood, in turn, is a badge of racial inferiority worn by all black people.

A discrimination law lens, thus, shines light on the relationship between ‘the dehumanization of the individual and [the] subordination of the group’. The Court’s judgment saw the denial of the abortion decision as dehumanising the individual woman, taking away her ability, as a ‘self-governing’ individual, to make ‘intimate decisions’ on reproduction. However, it did not adequately appreciate that such denial was happening to an individual woman because she was a woman, with such independent acts of denial affecting not just the individual woman but also women as a whole group. The Court did hint at such a perspective, in its observation that reproduction is both ‘biological’ and ‘political’:

it is biological since physical bodies reproduce, and it is political since the decision on whether to reproduce or not is not solely a private matter. This decision is intimately linked to wider political, social, and economic structures. A woman’s role and status in family, and society generally, is often tied to childbearing and ensuring the continuation of successive generations.

Here, we see nascent inflections of a discrimination law lens: that reproduction means (or, rather, has come to mean) something different for women. The next step, then, would be to interrogate the implications of this recognition for the legal regulation of abortion in India: what is truly at stake, from a constitutional perspective, when women are denied an abortion?

Moving on, the discrimination law lens also presents redressing of group-based disadvantage as a site for State action. This has two significant implications in the abortion context. First, the law often considers—as is now the case in India—State interest in protecting the foetus as placing ‘reasonable restrictions’ on women’s right to abortion. It is important to note that the Supreme Court in X v NCT Delhi did not introduce foetal interests as a restriction on abortion. Instead, in several places the Court saw the woman as the ‘ultimate decision-maker’ on abortion. However, it did not address whether this meant that no restrictions could be imposed on abortion (including those in light of foetal interests), leaving the question open for future courts. In fact, a petition challenging the constitutionality of the MTPA for violating foetal right to life has already been filed before the Supreme Court.

In asking if restricting abortion is necessary to protect foetuses, the discrimination law lens highlights that abortions are often necessitated by group-based disadvantage. For instance, in India, the most common factors motivating abortions are inadequate access to contraception and violence against women and girls leading to unwanted pregnancies, and the absence of State or familial support in childcare. These factors represent ways in which women experience disadvantage as women. They do not know about, cannot afford or are unable to insist on the use of temporary contraception. They are raped by strangers and acquaintances (including members of their families). And they bear unilateral responsibilities for childcare. So understood, redressing group-based disadvantage presents an alternate site for State action to reduce the need for abortion and thus protect foetuses. In fact,

there is a wealth of evidence that suggests that a concern for protecting [foetal] life can be more effectively pursued through policies that attack the incidence of unwanted pregnancy (for example, through improving the quality of sex education and contraceptive provision, and making motherhood a more realistic possibility for women struggling to balance childcare alongside other commitments).

If so, State insistence on restricting abortion as the means to protect foetuses is the State resorting to the more convenient option of ‘promoting the welfare of the unborn only when it can use women’s bodies and lives to realise the potential of unborn life’. This, the discrimination law lens would argue, is patently contrary to the constitutional commitment under the ‘equality code’.

Second, in X v NCT Delhi, the Supreme Court clearly recognised that respecting women’s abortion decisions requires the State not only to abstain from interfering in decision-making but also to facilitate decision-making through positive duties. What is less clear is the scope of these positive duties. The Supreme Court listed a few duties: disseminating information about abortion, improving affordability of the procedure, and preventing discriminatory treatment amongst doctors. Each of these duties seeks to redress specific forms of group-based disadvantage: illiteracy amongst women causing lack of awareness about abortions; poor women’s inability to access abortion due to high costs; and the tendency amongst medical professionals to mistreat lower caste women. A discrimination law lens, then, systematises this exercise. It identifies the full spectrum of group-based disadvantage, shaping the abortion decision at different stages: in necessitating abortion, in placing barriers to accessing abortion and in hampering quality of care while availing the abortion procedure. Such identification, in turn, presents sites for State action. Of course, this does not imply that courts ought to simply order such State action, ignoring concerns about institutional incompetence and democratic illegitimacy of courts in adjudicating on the State’s positive duties. A more appropriate course of action would be for courts to initiate a process of deliberation with the State and those affected, within the bounds of a human rights framework, an approach proposed (and adopted) by the Supreme Court recently. In any case, irrespective of how the positive duties are enforced, a discrimination law lens, at the minimum, would influence what the positive duties ought to be.

As the Supreme Court’s decision in X v NCT Delhi opens new constitutional avenues in India’s quest for reproductive justice, it presents an apt moment to pause, and consider, all that can be gained in bringing a discrimination law lens to abortion.

A Question of Consent: The Delhi High Court’s Split Verdict on the Marital Rape Exception

Today, a division bench of the High Court handed down its judgment on the constitutional challenge to the marital rape exception [“the MRE”]. Put simply, the marital rape exception states that “sexual intercourse by a man with his own wife … is not rape.” Petitioners – supported by amici – argued that the marital rape exception – which, in effect, immunises married men from being prosecuted for rape – violated Articles 14, 15(1), 19(1)(a), and 21 of the Constitution. The two-judge bench delivered a split judgment: Justice Shakder struck down the MRE as unconstitutional on all of the above grounds, while Justice Hari Shankar upheld its constitutionality.

Previously, on this blog, I have analysed the constitutional issues around the MRE in some detail. In this post, I shall argue, first, that the fundamental point of difference between the two judges is on the question of consent. Justice Shakder believes that whether in a marriage or out of it, sexual consent is paramount and inviolable. Justice Hari Shankar – although he denies it from time to time – believes that within a marriage, a woman’s consent to sex carries less weight. Secondly, I shall note that under existing Indian constitutional law, Justice Shakder is correct, and Justice Hari Shankar is wrong. Consequently, when this split judgment goes for resolution before a Full Court (or to the Supreme Court), Justice Shakder’s views ought to be upheld, and the MRE struck down.

The Opinion of Shakder J

The core of Justice Shakder’s argument can be found in paragraph 135.2 of his opinion. Examining s. 375 of the Indian Penal Code in some detail, which sets out the seven circumstances under which a sexual act counts as rape, he observes that:

A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl-child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstance)- form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. [Emphasis supplied]

As Shakder J notes, therefore, the core of the offence of rape is non-consensual sexual intercourse. The MRE creates a “firewall” that protects one class of putative perpetrators – married men – from being prosecuted for this offence, even though the ingredients of the offence are exactly the same. The question then follows: is this distinction constitutional? Shakder J holds that is not, as in essence what it conveys is that “forced sex outside marriage is ‘real rape’ and the same act within marriage is anything else but rape.” (paragraph 137.1) Thus, the MRE “with one stroke deprives nearly one-half of the population of the equal protection of laws.” (paragraph 137.1) This is because:

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman. In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman. Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. (paragraph 141)

For these reasons, Shakder J holds that the MRE fails the reasonable classification test of Article 14. He then addresses two counter-arguments: the idea of a “conjugal expectation to sex” and the “preservation of the institution of marriage.” On both issues, his response is grounded in the right to individual autonomy and consent. On the first, he notes that whatever the expectation might be (i.e., “unreasonable” denial of sex counts as a ground for divorce under Indian family law), it does not extend to an “unfettered right to sex” without consent (paragraph 146); on the second, he notes that the marital bond is itself based on the idea of choice, and mutual respect for “physical and mental autonomy” (paragraph 148); once again, therefore, a legal provision predicated upon the denial of consent cannot be saved by appeals to the institution of marriage.

This focus on choice, autonomy, and equality also leads Shakder J to hold that the MRE violates Articles 21, 15(1), and 19(1)(a) of the Constitution. In paragraph 163, he holds that “modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship.” For this reason, denial to married women the right to trigger prosecution for the violation of sexual consent infringes Articles 21; it also infringes Article 15(1), as it is discrimination based solely on marital status; and it infringes Article 19(1)(a), as “the guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.” (paragraph 166)

The Opinion of Hari Shankar J

How does the opinion of Hari Shankar J respond to these contentions? This opinion is based on two prongs. First, Hari Shankar J identifies what he believes to be a fundamental flaw in the petitioners’ logic: i.e., that all non-consensual sex is, by default, rape, and that the MRE is an impermissible departure from this default; and secondly, that when it comes to sex, the marital relationship is distinct from all other relationships, in that it carries with it a “legitimate expectation of sex.” This – according to Hari Shankar J – provides the “intelligible differentia” under Article 14, that justifies the legislative decision of treating non-consensual sexual intercourse within marriage as “not rape.”

Let us examine both steps of the argument. On the first step, Hari Shankar J tries to drive his point home by drawing an analogy with the crime of murder. Just like not every instance of taking a life is not deemed under criminal law to be “murder”, therefore – it follows – that not every act of non-consensual sex is deemed “rape”; rather, it is the legislature that decides which kind of non-consensual act is to be deemed “rape”, just as it defines when the taking of life is deemed murder. (paragraph 103)

In this context, Hari Shankar J repeatedly – and rather intemperately – accuses petitioners’ counsel, and the amici, of making arguments devoid of logic, and attempting to substitute the legal definition of “rape” for “what they feel should be the definition of rape.” If there is anything that demonstrates a complete lack of logic, however, it is Hari Shankar J’s choice of analogy. The relationship between the MRE and the offence of rape is not equivalent to the legislature defining the circumstances under which the taking of a life amounts to murder. The correct analogy – as should be immediately evident – is that of the legislature defining the offence of murder in full detail, and then adding – for example – an “MP exception” that goes “the killing of a human being by a member of parliament is not murder.” This is because – and this is the point of Shakder J’s judgment that Hari Shankar J fails to deal with in any sense – s. 375 exhaustively defines the ingredients of the offence of rape (which – as Shakder J correctly notes – involve non-consensual sex in various forms), and then exempt a class of perpetrators from prosecution on no other ground than that they belong to that class.

It is this simple elision that thus allows Hari Shankar J to dodge the issue of consent entirely, and repeatedly insist throughout his judgment that he supports consent, and indeed – incredibly – that this case is not about consent at all. As is immediately obvious, however, this case is all about consent: the entire scheme of s. 375 is designed to define non-consensual sex as rape, and then shield married men from the consequences of that legislative design.

Hari Shankar J then notes that there are a range of provisions in the IPC where the relationship between the parties matters (in a somewhat disturbingly violent analogy, he argues that a father slapping his child is not an offence, but a stranger slapping the same child is (paragraph 134)). This brings us to the second prong of his argument, which is the intelligible differentia. Hari Shankar J argues that the intelligible differential is founded upon the “unique demographics” (paragraph 104). What are these unique demographics? This comes in paragraph 113:

Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.

This idea of a “legitimate expectation of sex” comes in repeatedly through the judgment, and is the basis of Hari Shankar J’s finding that the MRE is constitutional. In paragraph 116, he notes that marriage “is the most pristine institution of mankind”, and that the “sexual aspect is but one of the many aspects” upon which the marital bond rests; in paragraph 119, he says that “sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.” In paragraph 120, he says that “introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.” In paragraph 127, he says that unlike live-in relationships, “the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond”; in paragraph 130, he says that “any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” He then adds that “it cannot even be assumed, in my view, that the perceptions of the petitioners reflect the views of the majority of Indian women.”

It is important to extract these observations in some detail, because they are characteristic of the muddled legal thinking that runs through Hari Shankar J’s opinion as a whole. Even if you take all these observations and assertions to be true (and there are many who would contest them!), what they demonstrate – at their highest – is that sex within marriage is somehow qualitatively different from sex outside marriage, because it forms an integral part of a set of reciprocal rights and obligations that constitute the valuable social institution of marriage.

But even if true, this is entirely besides the point. The only evidence that Hari Shankar J can muster up as evidence in his support is that unreasonable denial of sex can serve as grounds for divorce. That is true, as Shakder J also recognises. But there is a chasm of difference between saying – on the one hand – that the reciprocal social rights and obligations in a marriage create a ground for dissolution of that marriage if they are not discharged by either party, and saying – on the other – that they justify immunising the violation of sexual consent from being prosecuted as it normally is, outside of marriage – i.e., as rape.

Indeed, when you strip away the verbiage, what Hari Shankar J is effectively saying is that marriage not only gives the husband a legitimate expectation of sex, but the further right to violently enforce that expectation without suffering the same consequences as other people suffer. This not only flouts the rule of law, but also flouts basic logic, which appears to be particularly dear to Hari Shankar J.

A quick note on paragraph 130, which I found particularly disturbing. First, there is the assertion that a married woman who is subjected to non-consensual sex (since Hari Shankar J objects to using the word “rape”) will not feel as “outraged” as woman who is raped by a non-married person (whether that person is a stranger, a friend, or an intimate partner). This assertion has no business being in a judicial opinion. Secondly, there is the assertion that “the majority of Indian women do not share the views of the petitioners.” Whether true or not, this is entirely irrelevant, and indeed, a return of the infamous “minuscule minority” view that appeared in Koushal v Naz, was seemingly buried in Navtej Johar, but appears to have infinite lives in the halls of the Court.

It is this extraordinary reasoning that allows Hari Shankar J, to hold in paragraph 165, that:

Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent.

Once again, we see the absence of logic. It is nobody’s case that the Exception itself “obligates” a wife to consent to sex at all times. The case is that the Exception devalues a wife’s consent purely by virtue of her marital status. Hari Shankar J sets up this straw-man to knock it down in the second sentence – and then, in the third sentence, he comes up with a non-sequitur, noting that not only does the MRE not force a wife into non-consensual sex, but that it has nothing to do with consent at all! It is almost trite at this stage to point out the absence of logic: when s. 375 says that non-consensual sex is rape, and the MRE says that “except where it is a married man”, what the section – read as a whole – says is that non-consensual sex between a married man and a wife is not rape. Repeatedly – and belligerently – stating that all this has nothing to do with consent does not make it true.

The intellectual dodge at the heart of the judgment is finally laid bare in paragraph 169, where Hari Shankar J notes, by way of conclusion, that:

…the legitimate conjugal expectations of the man, as the husband of the woman and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis-à-vis all other relationships between man and woman, and all other legitimate considerations to which I have already referred, and which justify extending, to sexual intercourse and sexual acts within marriage a treatment different from such acts committed outside the marital sphere.

For the reasons I have explained in some detail, the dodge is simple: it is not enough for Hari Shankar J to show that sex within a marriage is in some way “different” from sex outside of marriage. He has to show that it is different in such a way that justifies diluting a married woman’s consent to sex. He does not show this, because he – incorrectly – attempts to argue that the entire case is not about consent in the first place. And the only way he can show that is by ignoring the actual text of s. 375 altogether – the text that is the starting point of Shakder J’s judgment – and which makes clear that consent is baked into the very ingredients of the offence of rape.

Endnotes

Having deconstructed the fundamental flaws of law – and of logic – that constitute Hari Shankar J’s opinion, it should be obvious that the opinion is unsustainable. In 2022, Indian constitutional law does not support the dilution of sexual consent based on marital status. One does not need to look too far for this: the issue is considered squarely in the Puttaswamy judgment, where Chandrachud J’s plurality opinion is explicit on this point, while many the other judgments make it clear the decisional autonomy is a fundamental facet of the right to privacy, and is not lost or in any other way compromised through social institutions such as marriage. Decisional autonomy within the marriage was also the fundamental basis upon which adultery was decriminalised in Joseph Shine; and sexual autonomy was at the core of Navtej Johar. It is – thankfully – too late in the day to go back on this rather fundamental precept.

Three final points. First, I have not in this post analysed all parts of the two opinions. For example, the two judges differ on whether striking down the MRE would lead to the creation of a new offence. I have analysed this issue in some detail in my previous post, and interested readers may refer to that.

Secondly, as this post shows, I believe that Shakder J’s judgment is opinion, and ought to be upheld on appeal. However, I also believe that the appellate forum needs to do more than that. I believe – and I say this with due consideration – that parts of Hari Shankar J’s opinion have no place in a jurisprudence that is formally committed to the basic idea of individual autonomy, dignity, privacy, and equal concern and respect. These include, for example, the frankly repulsive statement – that occurs on more than one occasion – that a married woman who is raped will “feel” less outraged than an unmarried woman who is raped. Examples can be multiplied; and when this judgment goes on appeal, the least that can be done is a formal expunging of these observations from the record.

And finally, this judgment shows – if anything does – the often Janus-faced character of the courts. We have two opinions – delivered in the same case – that, like ships in the night, sail past each other without even the chance of a conversation, because their premises are so very different. One opinion sees the task of constitutionalism to be interrogating power differences and breaking down social hierarchies, in order to achieve genuine substantive equality and freedom. The other opinion takes upon itself the task of defending and entrenching those hierarchies. I think we don’t see the first face of the courts often enough; but when we do – as in Shakder J’s opinion – it’s a powerful reminder of what constitutionalism, at its best, can be – and do.

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[Disclaimer: The present writer was involved in the initial drafting and hearing of the petitions challenging the MRE. He has not been involved in the case since 2019.]

Guest Post: The Constitutional Case Against EWS Reservations – Exploring the Principle of Reparative Justice under the Indian Constitution

[This is a guest post by Utkarsh Roy.]

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Introduction

In January 2019, Parliament enacted the Constitution (103^rd Amendment) Act, 2019 (“the Constitutional Amendment”), which amended Articles 15 and 16 by inserting Articles 15(6) and 16(6) into the equality code of the Constitution, and introduced reservation in the spheres of higher education and public employment for the Economically Weaker Sections (“EWS”) on the basis of their ‘financial incapacity.’ Articles 15(6) and 16(6), categorically speak of economically weaker sections of citizens other than the classes mentioned in Articles 15(4), 15(5) and 16(4). Therefore, the category of EWS arguably excludes the economically weak from Scheduled Castes (“SCs”), Scheduled Tribes (“STs”) and Other Backward Castes (‘OBCs’).

Until the Constitutional Amendment was introduced into the Constitution, reservation was restricted to certain social groups who suffer marginalisation on the basis of their ascribed identity. Such social groups comprise of various endogamous units constituting the three categories of OBCs, SCs, and STs on the basis of the social marginalisation and subjugation faced by them on account of their ascribed caste identity. The degree of such social marginalisation or oppression on the basis of caste identity varies across these three categories; however the nature of marginalisation finds its root in the caste identities for all the three categories.

The SCs comprise of those castes who were at the receiving end of the worst form of oppression on the basis of their caste identity and were labelled as ‘untouchables’ on account of them being assigned such tasks that were considered ritually polluted and impure. (Anand Teltumbde, The Persistence of Caste (Zed Books 2010), pg 14). The STs comprise of those indigenous communities (also referred to as ‘Adivasis’) who face oppression due to their isolation or exclusion from ‘mainstream’ society. Sanjukta Das argues that owning to such exclusion, the dominant mainstream society pejoratively categorises them as the ‘primitive other’ or ‘savages’ on the basis of their identity. The administrative category of OBCs encompasses those castes who were identified as ‘Shudras,’ and who were engaged in various marginal occupation assigned to them by the society to serve the upper three varnas higher to them in the caste hierarchy. According to DL Sheth, the OBCs have suffered from varying degree of ritual prohibitions (D.L. Sheth, ‘Changing Terms of Elite Discourse: The Case of Reservation for ‘Other Backward Classes’’in Zoya Hasan (eds), Politics and the State in India (Sage India 2000) pg 222). The Mandal Commission recommended, inter alia, reservation in favour of the OBCs in higher education and public employment on the ground that the OBCs were marginalised and excluded from institutions in the society on the basis of their inferior status in the caste hierarchy (Mandal Commission Report, Vol I, Chap 4, pg. 14). The Supreme Court in Indra Sawhney v Union of India (Indra Sawhney) relied on the observations of Mandal Commission that described how Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them (Indra Sawhney, Paragraph 13)  Similar rationale can be discerned regarding the constitutional provision for reservation in favour of women who have been at the receiving end of the oppression on the basis of their gendered identity.

In this essay I intend to establish that reparation towards marginalized identities like Schedule Castes, Schedule Tribes, Other Backward Classes, Women, Trans people etc. (collectively referred to as “Socially Marginalized Identities” or “SMIs”), forms part of the basic structure of the Constitution. I start off by emphasizing on the significant difference between the nature of injustices suffered by the SMIs and the EWS. I go on to argue that underlying principle behind the provisions dealing with reservation within the constitutional framework is essentially that of reparation. Further, I argue that the term ‘reparation’ necessarily involves acknowledgement / apology on the part of the oppressors for the oppression committed by them on the SMIs, coupled with a measure which intends to remedy the injustices of the past, i.e., reservation. Furthermore, I argue that the underlying principle of reparation, including its crucial element of acknowledgement, forms part of the basic structure. Lastly, I argue that the Constitutional Amendment erases the principle of reparation from the Indian Constitution, and therefore violates the basic structure of the Constitution. 

Difference between Identity-Based Oppression and Poverty

One has to be mindful that the SMIs and EWS are not similarly situated. The cause and nature of injustice suffered by the two groups are significantly different. Hill Jr. argues that racial and sexist oppression not only involved depravation in terms of tangible goods or denial of rights and opportunities, which can be roughly quantified and “paid back” in kind, but also consisted of psychological injury in the form of humiliation and contemptuous treatment which could not be paid back in the strict sense. Forms of oppression such as casteism, sexism and racism are primarily in the nature of psychological injury to the dignity of the entire social group. Therefore, the damage caused to the SMIs includes psychological damage in addition to material damage, which cannot therefore be compensated through material compensation. As Judith Jarvis Thomson argues in the context of racism and sexism:

“And even those who were not themselves down-graded for being black or female have suffered the consequences of the down-grading of other blacks and women: lack of self-confidence and lack of self-respect.”

Affront to the dignity of the SMIs requires moral repair or acknowledgement on the part of the oppressors along with a remedial measure to ensure the sincerity of the acknowledgement.

Further, the causes behind the injustice suffered by the EWS and SMIs are inherently different. There is a deliberate intention to oppress, exclude and subjugate the SMIs on the part of the oppressors on the basis of their supposed inferior social standing. The intentional nature of marginalization involved in egregious injustices like casteism, racism or sexism, wherein a dominant group consciously oppresses the subordinate group on the basis of its identity, sets it apart from economic injustice, which is result of structural or institutional maldistribution of wealth in the society. Therefore, the injustice suffered by the EWS is in terms of economic deprivation on account of the economic structure which has neglected them and allows the inequitable accumulation of wealth.

The claim of EWS, along with the economically disadvantaged among SMIs, is essentially of distributive justice which seeks redistribution of wealth in the society, while the claim of SMIs, including those who belong to the economically advanced sections among the SMIs, is essentially of moral repair or reparation on the on the part of the oppressors for the affront to their dignity.

Reservation Envisaged as a Distinct Remedy to Address Identity-Based Oppression

To enquire whether reservation was envisaged specifically to remedy the injustice done on the basis of identity, reference can be made to Justice Sawant’s opinion in Indra Sawhney, wherein he observed that:

However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4).

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In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). (emphasis added)” [Paragraph 575]

Justice Sawant further observed:

“If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste. Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination (emphasis added) [Paragraph 520].”

The tenor of the foregoing observation makes it clear that reservation is envisaged as a distinct and separate remedy to address the past (and present) injustice suffered by certain social groups on the basis of their caste. Therefore, Justice Sawant opined that the basis of remedial measure has to be caste, if the exclusion or oppression was done on the basis of caste. The foregoing rationale behind reservation can be extrapolated to other marginalised identities like women and trans people, who have been oppressed on the basis of their gender or sexual identity.

Further, Justice Sawant observes that reservation is not meant as a remedy for the economically weak among the dominant sections of the society, as they are already well represented in the sphere of higher education and employment. Therefore, by necessary implication, it can be concluded that reservation in the spheres of higher education and employment is meant to address a specific kind of injustice based on the identity of certain social groups, as opposed to injustice solely in terms of economic or material depravation.

The Underlying Principle behind Articles 15(4), 15(5), 16(4) and 16(4A) 

In Indra Sawhney, the respective opinions delivered by Justice Reddy (along with three other Justices), Justice Sawant and Justice Pandian (“the Combined Opinion”) stressed on the past injustices and marginalisation committed to the SMIs on the basis of their caste identity. From the Combined Opinion, one can conclude that there was a consensus with respect to the proposition that the measure of reservation is meant to address the historical injustices suffered by the SMIs. The combined opinion recognised that the aim and purpose of reservation was to restore the imbalance created in the favour of the dominant social groups on account of the concomitant injustice suffered by the SMIs. Therefore, six out of the nine judges in Indra Sawhney were of the opinion that the measure of reservation was meant to remedy the past injustices suffered by certain social groups and to redress the imbalance created on account of such injustices.

In the context of determining the quantum of reservation, Justice Reddy observed that:

True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go, i.e., in a year or two. (emphasis added) [Paragraph 96]

In the above observation, Justice Reddy not only recognised the fact that the Backward classes have suffered historical social injustice but also acknowledged that they continue to being subjected to such injustice even today. Further, the foregoing observation makes it clear that the measure of reservation is meant to redress the imbalance caused due to centuries of injustice. In other words, reservation is meant to undertake reparation.

Subsequently, in M Nagaraj v Union of India (M Nagaraj), the Constitution Bench observed that Article 16(4) reflected the principle of ‘egalitarian equality’ which essentially required the State to undertake affirmative action in favour of disadvantaged section of the society within in the democratic set up. The Constitution Bench in M Nagaraj, made a very crucial observation that:

“Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. (emphasis added)” [Paragraph 71]

The foregoing observation by the Constitution Bench in M. Nagaraj recognised that Article 16(4) is meant to remedy the past historical discrimination suffered by certain social identities who constitute a distinct social class. Therefore, the principle of egalitarian equality reflected through the Article 16(4) is essentially to undertake reparation towards the SMIs in order to remedy the past injustices suffered by them.

Reparations as Part of the Basic Structure

Krishnaswamy argues that in order identify a basic feature, the court looks for ‘features’ of the Constitution reflected through various provision of the Constitution which may be regarded as moral and political principles at the normative core of the Constitution (Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, (Oxford University Press 2009) pg. 146).

In M Nagaraj, the Constitution Bench observed that the Constitution is committed to certain principles, which are manifested through various articles. Therefore, various provisions of the Constitution might be interwoven with a common commitment to certain overarching principle, which are distinguished as essential features (the basic structure) of the Constitution. Such overarching principles which are recognised as essential features are reflected through different provisions that are spread across different parts of the Constitution. [Paragraph 19]

At this stage it is pertinent to refer to the concurring opinion by Justice Pandian in Indra Sawhney, wherein he observed:

“There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment. (emphasis added).” [Paragraph 145]

The foregoing observation by Justice Pandian indicates that a common thread runs through various constitutional provisions spread across different parts of the Constitution. Justice Pandian’s observation that such provisions are meant to “redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes,” strongly suggests that an overarching principle of reparation runs as a common thread through such provisions. Further, according to Justice Pandian, this overarching principle “is not merely a part of the Constitution but also a national commitment.” Therefore, I argue that the above observation made by Justice Pandian indicates that the overarching principle of Reparative Justice which runs through various provisions of the Constitution is an essential feature of the Constitution. 

Furthermore, in I.R. Coelho (Dead) by L.Rs. v. State of Tamil Nadu and Ors, (IR Coelho), Sabharwal CJ made following observation on behalf of the nine-judge Constitution Bench:

India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case. (emphasis added) [Paragraph 62]

The foregoing observation by Constitution Bench categorically recognizes that the essence of fundamental rights forms part of the basic structure of the Constitution. The concrete provisions are the manifestation of the underlying abstract philosophies or values behind such provisions. The underlying abstract principles or values behind such provisions have to be distinguished from the text of the provisions itself, as it is the former which forms part of the basic structure. The textual provisions can be amended through constitutional amendment, as long as it is not destroying the underlying principle behind those provisions. In case a constitutional amendment alters or infringes the underlying abstract principle behind a textual provision or the essence behind the fundamental rights, it would amount to violation of the basic structure of the Constitution.

Therefore, an amendment of a constitutional provision which is meant to further the abstract value behind such provision would not violate the basic structure, as the amendment would be in consonance with the abstract value which forms part of the basic structure. For instance, in M Nagaraj, the Constitution Bench observed that the identity of the Constitution was not altered upon the insertion of Article 16(4A), through a constitutional amendment. The Constitution Bench observed that Article 16(4A) flows from Article 16(4) indicating that constitutional amendment introducing reservations in promotions was in furtherance of the principle already enshrined in Article 16(4). I argue that the Constitution Bench in M. Nagaraj observed that there was no change to the identity of the Constitution on account of the constitutional amendment because the insertion of Article 16(4A) was in consonance with underlying principle enshrined in the Article 16(4) (mutatis mutandis in Articles 15(4), and 15(5), i.e., principle of reparation towards the SMIs. 

Envisaging Reparation as an Eternal Concept

There could conceptual or philosophical problems in envisaging reparation as part of the basic structure. For a principle to form part of the basic structure, it should be of eternal character. On the face of it, reparation might seem to be a process which has an definite endpoint. However, I argue that reparation is an eternal process which requires acknowledgement on the part of the oppressors along with a remedial measure to substantiate that acknowledgement, and the acknowledgement outlives the remedial measure.   

As per Boxill, the acknowledgement of the past injustice from the oppressors is a prerequisite under the premise that every person is equal in worth and dignity. The absence of such acknowledgement or admission on the part of the oppressor would indicate that the oppressor has merely treated the oppressed groups in which it deems fit, wherein, the terms of such measure are set by the oppressors itself. In such scenario, Boxill argues, that measure undertaken would not establish equality between the oppressor and the oppressed.

Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressor believes or considers the oppressed group as its equal. In other words, justice demands that the society, and therefore the State acknowledges that it is undertaking remedial measure towards the SMIs in the form of quotas or reservation, precisely because such treatment or measure is required from the State on account of the past injustice suffered by the SMIs. Acknowledgement on part of State, and therefore, the society would reinforce its belief in the equality of the SMIs by admitting that reservation is required precisely because of the malicious and intentional marginalisation faced by the SMIs at the hands of the society and that the measure of reservation seeks to remedy the affront to their dignity.

Therefore, the acknowledgement is one of the two crucial elements of reparation. The acknowledgement would outlive the remedial measure of reservation. Karl Figlio argues that remembering is reparation and that reparation is a never-ending urge. Figlio relies on Habermas, who advocated an endless, ever-incomplete work of ‘critical self-examination’ for Germany in the context of reparation to Jews. (Karl Figlio, Remembering as Reparation, (Palgrave Macmillan) pg. 124). In the context of German reparation to Jews, Habermas espouses critical self-examination of subsequent generations and argues that there is an obligation incumbent upon Germany to keep alive the memory of the suffering of the victims of Holocaust. Habermas suggested that subsequent generations can practice solidarity with victims of Holocaust, only through the “medium of remembrance that is repeatedly renewed,” continually on one’s mind (J. Habermas, S.W. Nicholsen, The New Conservatism: Cultural Criticism and the Historians’ Debate Studies in Contemporary German Social Thought (MIT Press) pg. 28)

Reparation is constituted by two elements – acknowledgement and a measure to substantiate the acknowledgement. In case either of the two is absent, then the act won’t amount to reparation. The two elements of reparation, i.e., acknowledgement and remedial measure complete each other. Acknowledgement is required to ensure that the remedial measure is undertaken precisely to address the past injustices and to uphold the dignity of the SMIs and remedial measure is required to ensure that the acknowledgement is a sincere one.  The remedial measure of reservation acts as a concrete limb to the abstract principle of acknowledgement. Though the remedial measure, i.e., reservation might be eventually phased out if certain material conditions were fulfilled, the acknowledgement of the society towards the SMIs would be there for eternity. The remedial measure of reservation is closely entwined with the acknowledgement, as the substance of the acknowledgement is predicated on the undertaking of the remedial measure of reservation.

Reservation as an Acknowledgement Forms a Part of the Basic Structure

I argue that that the remedial measure of reservation under the Indian Constitution itself amounts to an acknowledgement on the part of the State, which is a representative of the society which subjugated the SMIs. The Indian constitution envisages reservation as a distinct remedial measure meant for addressing past injustices suffered by SMIs. The distinct nature of the remedial measure amounts to acknowledgement on the part of the society. Khaitan argues that the strong form of affirmative action like quotas should be set aside only for the social groups who have suffered from egregious historical injustices like slavery, apartheid and casteism, as in such cases the quotas could indicate an admission or acknowledgement of the trauma of these past injustices (Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press 2015) pg. 223). In the context of race-based affirmative action, Bridges argues that it could be the most moral effort that society could make insofar as it reminds society about the racial injury that the racial minorities in the US have suffered. The requirement of acknowledgement also indicates that the measure meant for reparation cannot be subsumed with other claims of justice. It is argued, in the context of Black reparation, that the agenda of black reparation should not be remoulded into a ‘universalistic’ reform meant for all American citizens or redesigned for poor people (including poor white population) per se (C.J. Munford, ‘Reparations: Strategic Considerations for Black Americans’ in Roy L. Brooks (eds), When Sorry Isn’t Enough (New York University Press 1999) 424).

Therefore, in the Indian context, reservation serves the dual purpose of acknowledgement and remedial measure. The acknowledgement and the remedial measure are interwoven with each other. Any alteration with the remedial measure would completely erase the acknowledgement. Hence, the aspect of reservation which signifies acknowledgement, i.e., it being a remedy of distinct nature meant to address specific kind of injustice suffered on the basis of identity, is part of the basic structure.

This argument in no way suggests that the Constitution forecloses the possibility of parliament coming up with an alternate measure of undertaking reparation. From the broadly worded texted of Article 15(4), it is amply clear that Constitution allows the parliament to come up with additional measures as a supplementary to the existing reparative measures, to further the abstract principle of reparation. However, the argument suggests that a measure which has been recognised as a reparative measure cannot be extended to social groups who have not suffered identity-based injustice, because that would be in contravention or violation of the underlying principle of reparation which forms part of the basic structure. For example, even if there are two measures for undertaking reparation, a constitutional amendment which inserts a provision which negates or divests the reparative nature of the measure would be violative of the basic structure.  Therefore, reservation which has been recognised as a measure to undertake reparation cannot be altered in a manner wherein it loses its reparative character.

103^rd Constitutional Amendment is in Contravention of the Acknowledgement

As argued in the earlier section, the setting aside or earmarking of the strongest form of affirmative action in the form of quotas or reservation in favour of the SMIs, indicates acknowledgement on the part of the State that reservation is meant to address the specific nature of injustice or injury suffered by the SMIs on the basis of their identity. However, such acknowledgement or admission is erased when reservation, which was hitherto earmarked or set aside to specifically address the egregious injustices like casteism and sexism suffered by certain social groups on the basis of their identity, is extended to other groups, who have not been intentionally subjected to such marginalisation and subjugation on the basis of their identity.

Extending the remedy of reservation to the EWS thus amounts to conflation of the significantly different claims of EWS and SMIs. Furthermore, extending reservation to the EWS envisages the space in the sphere of higher education and employment merely as an economic good to be distributed in a distributive paradigm, rather than a means to alter the power relation and social standing in society. I therefore contend that clubbing the EWS and SMIs together for the remedial measure of reservation, conveys that in the eyes of the state, the marginalisation and deprivation faced by SMIs as well as EWS are similar in nature, and therefore it could be addressed through the same remedial measure of quotas and reservation. Further, the extension of reservation or quotas to the EWS downplays the nature of injustice suffered by SMIs, which is in terms of psychological injury to the dignity of the entire social group. Extending reservation to EWS suggests that economic deprivation is the only injustice that is faced by SMIs. Therefore, the remedial measure of reservation, which was envisaged by the Constitution as a remedy to the distinct nature of injustice suffered by the SMIs on the basis of their identity from time immemorial, gets reduced to a measure meant to undertake distributive justice.  

Importantly, Boxill distinguishes between a mere objective measure undertaken by the oppressor for the oppressed groups and their subjective attitude in undertaking that measure. According to Boxill, justice requires equal consideration between equals, that is, justice requires that the oppressed groups are treated in a particular manner by the oppressors, not for the reason the oppressors deem fit, but that they are treated equally by the oppressors for the very reason that the oppressors believe or consider the oppressed group as their equal. By extending reservation to the EWS, the objective measure of providing reservation to the SMIs is devoid of the subjective attitude of ensuring reparation to them. Therefore, reservation is provided to the SMIs, but on the terms wherein the State can dispense with its acknowledgement and apology for the past injustice. Absence of acknowledgement and apology would mean that the State treated the SMIs the way it deemed fit.

Therefore, the Constitutional Amendment fundamentally changes the nature of the remedial measure by suggesting that the nature of injustice suffered by EWS is similar to that of the SMIs. Reservation ceases to be a measure for reparation once it is extended to those groups who have never been subjected to past injustices on the basis of their identity.

103^rd Constitutional Amendment violates the Basic Structure

To enquire whether insertion of Articles 15(6) and 16(6) violates a principle which forms part of the basic structure of the Constitution, it would be pertinent to refer to the following observation by Justice HR Khanna in Indra Nehru Gandhi v Raj Narain (Indra Nehru Gandhi):

I shall for the purpose of this case assume that such a matter can validly be the subject-matter of a Constitutional amendment. The question to be decided is that if the impugned amendment of the Constitution violates a principle which is part of the basic structure of the Constitution, can it enjoy immunity from an attack on its validity because of the fact that for the future, the basic structure of the Constitution remains unaffected. The answer to the above question, in my opinion, should be in the negative. What has to be seen in such a matter is whether the amendment contravenes or runs counter to an imperative rule or postulate which is an integral part of the basic structure of the Constitution. If so, it would be an impermissible amendment and it would make no difference whether it relates to one case or a large number of cases. If an amendment striking at the basic structure of the Constitution is not permissible, it would not acquire validity by being related only to one case. To accede to the argument advanced in support of the validity of the amendment would be tantamount to holding that even though it is not permissible to change the basic structure of the Constitution, whenever the authority concerned deems it proper to make such an amendment, it can do so and circumvent the bar to the making of such an amendment by confining it to one case. What is prohibited cannot become permissible because of its being confined to one matter (emphasis added). [Paragraph 210]

From the foregoing observation it is clear that the standard that has been set to evaluate whether a constitutional amendment violates the basic structure requires that the constitutional amendment should run counter to or in contravention of an underlying abstract principle which forms part of the basic structure. The foregoing observation strengthens my argument in the earlier section, that even if there are more than one recognised measure of reparation within the constitutional framework, a constitutional amendment divesting the reparative nature of even one reparative measure would run counter or in contravention or violation of the principle of reparation which forms part of the basic structure.

Further, in IR Coelho, the Constitution Bench made following observation:

“If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down.” [Paragraph 62]

I argue that the insertion of Articles 15(6) and 16(6) infringes the essence behind Articles 15(4), 15(5), 16(4) and 16(4A), which has been recognised as principle of reparation. Relying on the foregoing observation, I argue that once a measure has been earmarked or recognised as a reparative measure, it cannot be altered in a manner that it ceases to be of reparative character. Any such constitutional amendment which introduces a provision in the constitution to change the reparative character of a recognised reparative measure, would be in contravention or would run counter to the principle of reparation, which forms part of the basic structure. In the present case, the erasure of acknowledgement which is a crucial and indispensable element of the reparation, runs counter to, or contravenes, the principle of reparation within the constitutional framework.

For these reasons, the 103rd Amendment it is unconstitutional on the ground that it violates the basic structure of the Constitution.