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.

The Hijab Case: Round-Up

This is a round-up of blog posts that have discussed various issues in the ongoing hijab case before the Karnataka High Court, on which judgment has now been reserved.

1. The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing (see here).
2. Guest Post: The Hijab Case through the Lens of Article 19(1)(a) [by Hari Kartik Ramesh] (see here).
3. Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya [by M. Jannani] (see here).
4. Guest Post: The Hijab Case Through the Lens of Proportionality [by Shreyas Alevoor] (see here).
5. Guest Post: The Hijab Case through the Lens of Intersectionality [by M. Jannani] (see here).

Guest Post: The Hijab Case through the Lens of Intersectionality

[This is a guest post by M. Jannani.]

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In my previous post, I had analysed judgments delivered by the Kenyan courts in Mohamed Fugicha v. Methodist Church and how they had applied of the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the uniform, issued by a school in Kenya. I had also discussed how the Kenyan courts had applied the indirect discrimination test laid down in the Sarika case. In this blog, I take a step further and argue why the Hijab case would benefit from the import and application of the Sarika test by Indian courts. The first part of my essay will discuss why the direction issued by the pre-university education department of the Karnataka government has the effect of intersectional discrimination upon female Muslim students. The second part will discuss why the indirect discrimination tests laid down in Fraser v. Canada or Griggs v. Duke Power Company should not be applied by the court to the Hijab case. In the third part, I examine how the principle of reasonable accommodation interacts with the doctrine of indirect discrimination and its relevance to the present case.

Intersectional discrimination

In Navtej Johar v. Union of India , Justice Chandrachud’s concurring opinion recognized that claims of discrimination can be made on more than a single ground under article 15 of the Constitution of India. This view was affirmed by the Supreme Court in Ravinder Kumar Dhariwal v. Union of India.  In Patan Jamal Vali v. The State of Andhra Pradesh the Supreme Court discussed in length the difference between single axis discrimination and intersectional discrimination. It also specifically held that:

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.” (Emphasis mine)

The restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities. This is best captured by the following excerpt from an article by Maleiha Malik titled Complex Equality: Muslim Women and the ‘Headscarf’ which explains how the restriction imposed by different governments on headscarves worn by Muslim women is not only an attack on their religion but also a form of gender-based discrimination:

“One reason that the gender aspects disappears within the analysis is because it uses single axis definitions of equality which are designed to focus exclusively on one ground of inequality, e.g. sex or religion or race. However, the discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination; as well as a qualitative change in how multiple discrimination undermines Muslim women’s agency. The structure of single-axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discrimination: e.g. sex and religion and race. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination. The need for a single hypothetical comparator within single axis equality forces a stark choice. If gender is chosen then majoritarian definitions of woman may marginalise the needs of Muslim women. If religion is preferred then this often reflects the needs of the Muslim man as the representative of religion rather than Muslim women. Complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy. As well as examining gender oppression by Muslim men within minority Muslim communities, complex equality also takes into account the power of the state and majority women vis a vis Muslim women.” (Emphasis mine)

Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities- gender and religion. Hence, the restriction is one that has an effect of intersectional discrimination.

The courts should avoid the application of the tests laid down in Fraser or Griggs to the Hijab case

I will start by acknowledging that the doctrine of indirect discrimination is in its nascent stages of legal development in India. But that shouldn’t stop the courts from applying the doctrine of indirect discrimination to the Hijab case which is a textbook case of indirect discrimination – one where the restrictions may seem facially neutral, but has a disparate impact on female Muslim students who wear the Hijab. The Indian Courts on the question of indirect discrimination have relied on the Fraser v. Canada and Griggs v. Duke Power Company, as had been mentioned in a previous essay on this blog. I argue, why the courts should not apply the two tests in this specific case.

As I had mentioned in the previous section, the current case is one that involves a group of persons (female Muslim students) who face discrimination due to their intersecting identities. In Griggs v. Duke Power, the question before the Supreme Court of the United States of America was whether the employment requirements had a disparate impact on African-Americans because of their race. In the case of Fraser v. Canada, the Supreme Court of Canada evolved the indirect discrimination test in a case where a pension plan had an effect of adverse impact discrimination on women. Thereby, it can be observed that the courts in these two cases have evolved the test in the specific context where the individuals have been subjected to indirect discrimination on a singular aspect of their identity i.e., race or gender.

These tests have been applied by the Indian Courts primarily in cases of indirect discrimination where a group of persons or an individual has been subjected to discrimination on the basis of one factor of their identity. For example, in Nitisha v. Union of India (where the Supreme Court applied the Fraser test), the court looked into whether the requirement laid down for women to attain permanent commission in the Indian Army was one that had the effect of gender-based discrimination. Similarly, in Madhu v. Northern Railways (where the Supreme Court applied the disparate impact principles laid down in Griggs v. Duke Power) the Delhi HC looked into indirect discrimination where the discriminating factor was only gender.

On the other hand, In Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court remarked on the dangers of courts adopting a legal analysis which looks at discrimination only through a single axis in cases where an intersectional approach is required. The relevant parts of the judgment are as follows:

“A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”. Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that “but for” that identity, they would have been treated in the same way as a comparator. Therefore, their treatment is irrational and unjustified.

By exhibiting attentiveness to the ‘matrix of domination’ created by the intersecting patterns at play, the Court can more effectively conduct an intersectionality analysis. A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.” (Emphasis supplied)

Thereby, tests laid down in Fraser or Griggs which have been formulated in a context where the affected persons were subjected to discrimination on a single factor of their identity should not be applied to the Hijab Case wherein the persons are being exposed to indirect discrimination due to their intersectional identities. If either of the two tests are applied to the latter case it renders invisible the discrimination faced by the female Muslim students by putting them into a homogenous religious group of ‘Muslims’ and does not acknowledge the specific dimension of oppression that interacts with their religious and gender identity. 

The present case demands for the import of the test laid down in the Sarika judgment

In the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School , the England and Wales High Court examined whether a girl student from a minority religious community in the region i.e., the Sikh community, was subjected to indirect discrimination. As one can notice, the judgment begins with a recognition of how ‘school girls’ had lost cases before the court where they exerted their right to wear articles of faith along with their school uniform. The judgment also recognises her gender and religious identification, and addresses her as a ‘Sikh girl’ or ‘Sikh school girl’, resulting in acknowledging her intersectional identity. Similarly, the Kenyan Court of Appeals decision in Mohamed Fugicha v. Methodist Church looked into the question of indirect discrimination in a case where hijabs were restricted due to which a certain groups of students faced indirect discrimination. The group in this case were female Muslim students who were affected by the discrimination due to their intersectional identities (religion and gender). The Kenyan Court of Appeals applied the test laid down in the Sarika judgment. Though the courts may not have explicitly addressed the aspect of intersectional discrimination of persons in these cases, they have applied the specific test to recognise the indirect discrimination, where they have identified the groups with their intersectional identities as either ‘Sikh school girl’ or ‘female Muslim students’ as the case maybe. Thereby, Sarika test is more appropriate to cases where the doctrine of indirect discrimination is invoked with respect to persons who may be disparately impacted due to their intersecting identities since they formulated and applied in such contexts.

The Sarika judgment and the Essential Religious Practices Test

The judgment in Sarika referred to the following factors laid down in the case of R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 to access whether a religious belief in the case was one that was genuine:

(a) …when the genuineness of a claimant’s professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…”;

(b) …the court is concerned to ensure an assertion of religious belief is made in good faith ‘neither fictitious, nor capricious and that it is not an artifice’…”;

(c) …emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of other professing the same religion…”; and that 

(d) …the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

It can thereby be seen that the third factor for accessing whether a religious belief is genuine expressly states that the court should not embark on an inquiry and judge such a practice on the metric of some objective standard such as the source of the material upon which the person based their religious belief on. Similarly, Kenyan Court of Appeals while applying the Sarika test in Mohamed Fugicha held:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

Therefore, if the Sarika test is applied to the Hijab case, to prove the whether the belief is genuine in the case a claim of indirect discrimination is brought, the court will only need to look into whether the belief is genuinely held. It need not apply the Essential Religious Practices test.

Reasonable Accommodation and Indirect Discrimination

In NALSA v. Union of India, the Supreme Court recognized that the principle of non-discrimination goes beyond the prevention of discrimination and extends to remedying systemic discrimination that persons may suffer due to their identities. One such remedy is the notion of ‘reasonable accommodation’.  The following is the relevant portion of the judgment:

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

In Madhu v. Northern Railways, while addressing the aspect of indirect discrimination the Delhi High Court referred to the following excerpt from the judgment in Jeeja Ghosh v. Union of India:

“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.”

It is important to interpret this reference by understanding what the judgment in Jeeja Ghosh addressed. The Supreme Court in Jeeja Ghosh recognised the principle of reasonable accommodation for disabled persons (who were systematically discriminated in this case) in a bid to remedy discrimination that they had faced. It also mentioned that such reasonable accommodation has to be made in the interest of substantive equality.  Therefore, when the Delhi High Court in Madhu referred to this specific excerpt, it in effect recognised that remedying discrimination also includes within it allowing reasonable accommodation to those groups that face systemic discrimination beyond the realm of disability.

Similarly, in Nitisha v. Union of India, the court mentioned, while referring to the judgments in Jeeja Ghosh v. Union of India and Vikas Kumar v. UPSC, that the Supreme Court has recognised reasonable accommodation as a ‘substantive equality facilitator’ while discussing indirect discrimination. Thereby it can be noticed that the courts have acknowledged the need for the principle of reasonable accommodation to be applied to cases involving indirect discrimination for the realisation of substantive equality.

The Supreme Court in Ravinder Kumar Dhariwal v. Union of India held that the initiating disciplinary proceedings against a mentally disabled person (in the said factual background) amounted to indirect discrimination. The judgment referred to the case of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, and recognised that in case prima facie discrimination exists, the burden shifts on the person or entity who discriminates to justify the discrimination and to prove that it did indeed provide for reasonable accommodation. The Supreme Court used this three stage test while discussing indirect discrimination. The relevant extract is as follows:

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU 83, the Canadian Supreme Court held that once it is established that prima facie discrimination exists, the burden shifts on the employer to justify the discrimination, which involves proving that it provided reasonable accommodation. The court developed a three-stage test based on proportionality to determine whether an employer may use the bona fide occupational requirement.

Thereby, the burden in the present case, will fall on the relevant authorities of the Karnataka government to prove that measures to allow reasonable accommodation were provided for the students who are at the receiving end of the discrimination. It must however be kept in mind that Indian Courts have explicitly recognized the principle of reasonable accommodation, for the most part, in cases relating to disability rights.

Conclusion

The judgments delivered by the Indian courts on indirect discrimination are a testament to transformative constitutionalism, one where the courts have not hesitated to borrow from other jurisdictions in order to ensure that there is not a formalistic interpretation of equality. Even though the Supreme Court of India has commented in certain judgments (such as Nitisha v. Union of India) on how the doctrine of indirect discrimination is at its nascent stages, one can observe that that hasn’t stopped the courts from using the doctrine in those cases or expanding the contours of the doctrine’s application with due regard to the specific nature of each case. Such a commitment to substantive equality, in my opinion, is only strengthened, when the unique nature of the interaction between indirect discrimination and intersectional discrimination is recognized in the Hijab case.

The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing

The essential religious practices test [“ERP”] is one of the enduring burdens of Indian constitutional law. Its origins (as I have shown here) lie in a judicial misreading of one sentence spoken by Dr. Ambedkar in the Constituent Assembly Debates. Scholars have criticised it. Judges have expressed discomfort about how it forces them into becoming ecclesiastical authorities (often for religions that are not even their own). And yet, every time a faith-based dispute is brought to the courts, the ERP returns to haunt all of us: like the proverbial betal upon the Constitution’s shoulders, that can only be shaken off upon the peril of being devoured.

On this blog, I have previously criticised the ERP test. While there are good reasons for jettisoning the test – not least that it has no foundation in the Constitution, has been repeatedly demonstrated to be arbitrary, and that other – better – tests exist, in this post I want to make another point: by its very nature, the ERP test is set up to deny and negate individual agency. And there is no better evidence of that than the ongoing – and now suspended – proceedings before the Karnataka High Court, concerning the exclusion of Muslim women students from certain schools and colleges because they were wearing the hijab.

It is important to start by noting that there exist multiple reasons why someone might wear the hijab, and – as in most cases involving community symbols (especially gendered symbols) – these reasons exist along a spectrum between choice and coercion. For some, it may be a defence of a beleaguered identity; for others, an expression of that same identity; for still others, a deference to tradition, or a modus vivendi with family members; or in still other cases, outright coercion. The point is that unlike certain other social practices (say, for instance, the Nazi salute – or, perhaps a closer analogy, the practice of FGM), in our context, the wearing of the hijab is not subject to one specific meaning or interpretation. And it is obviously impossible for the State to investigate every specific instance of someone wearing the hijab in order to determine just how free or unfree that choice was.

Now, given that there might be a range of reasons why someone might wear the hijab, what – specifically – was the reason that came to the fore in the case before the Karnataka High Court? The very first thing that the Petitioners’ counsel invoked was the Quran, and he then proceeded to read from it. Counsel then went on to quote various hadith, according to which “it is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation” (sic), that women’s garments should be “lowered a hand span” (otherwise, punishment would follow), and then a previous Kerala High Court judgment where – on an analysis of these same lines – it had been observed that the practice of leaving the head uncovered (for women) was “haram” in Islam.

We therefore see how, before the High Court, the entire range of complex reasons for why one might wear the hijab was reduced to one overarching claim: that it was a religious command that brooked no disobedience. In other words, a case that – as a matter of fact – was a case about agency and choice (albeit, complex and situated agency and choice) turned into – in law – a case about the absence of choice and the deprivation of agency. The Court was asked to allow the petition because the Muslim women students effectively had no choice in the matter, for the wearing of a headscarf was a compulsory prescription that flowed from religious authority.

Note that this is not meant to be a criticism of either the counsel (for choosing to lead with this argument) or of the judge (for engaging with its on its own terms). The form of the argument was effectively dictated to all the parties by virtue of the long shadow of the ERP. Because the ERP – in the highly perverse manner in which the Indian courts have interpreted it over the years – applies to prohibitions and proscriptions, but not – seemingly – to things that a religion might simply allow – a successful ERP claim literally depends upon first obscuring and erasing the agency of the petitioners before the Court. It needs to be shown to the Court that the petitioners are helpless in the matter, that they have no say or choice in fashioning for themselves the contours of their religious practice, that the possibility of cultural or religious dissent, or pluralism, or heterodoxy simply does not exist.

In the hijab case, it becomes a particular problem, because once the argument is framed this way, it leaves the Court with one of two choices: either to accept the argument and allow the hijab on the basis of a highly dated and expressly misogynistic and patriarchal logic, and create a legal fiction where women have no agency in the matter; or to reject the argument, and in the process, deny the elements of actual agency that are involved here. It is an impossible choice, and – as I have tried to show in this post – it is a choice that is foisted upon the Court because of the ERP test. The ERP test is based upon the fundamental – and anti-constitutional – premise of legitimising the denial of individual agency.

Instead, would it not be better if the argument took the following form?

1. That dress and clothing are aspects of individual and often social expression (especially when it comes to community symbols), and therefore – regardless of whether the motivation to wear them is religious or otherwise – they are protected under the rights to free speech and privacy (as decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.
2. This means that claims of this kind (where the Court is allowed to look into the subjective sincerity of the belief, but not whether it is objectively “essential” to a religion) should be presumptively allowed, subject to the principle of reasonable accommodaiton.
3. That the burden should then be on the authorities to show why reasonable accommodation is not possible in a specific case: i.e., what is it about the hijab (or other aspects of clothing that meet the first prong) that is fundamentally incompatible with public/educational spaces such as schools or colleges.

Rejecting the ERP test for for a test of this kind would allow courts – especially in contentious cases of this kind – to actually respect the agency and choice of the claimants. In that sense, the hijab case presents the quintessentially “good case” before the courts: it is difficult to imagine another case where the problems with the ERP test are so stark and clear, and where the arguments for jettisoning it in favour of a more constitutionally grounded and just approach are so evident. While, for now, the case is in limbo, I’m fairly sure that we haven’t heard the last of this one: a full bench of the Karnataka HC will now consider the issue afresh, and in all likelihood, it will travel up to the Supreme Court. It remains to be seen what the judiciary does now.

Merit, Equality, and Reservations: The Supreme Court’s NEET Judgment

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

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On 20th January, a two-judge bench of the Supreme Court handed down its judgment in Neil Aurelio Nunes v Union of India. The case arose out of constitutional challenges to reservations for Other Backward Classes [“OBCs”] and the Economically Weaker Section [“EWS”], in the entrance examination [“NEET”] for undergraduate and postgraduate medical courses. The Supreme Court dismissed the challenge to OBC reservations, and posted the challenge to EWS reservations for further, more detailed hearing.

More specifically, the question before the Court was whether, in light of precedent, it was permissible for the government to carve out further quotas for OBCs within the All-India Quota [“AIQ”] in the NEET. The controversy arose because under existing law, state-run medical institutions have two distinct sets of of seats: one set of seats is limited to students domiciled in the state in question, and the other set forms part of the AIQ – i.e., it is available, on the basis of performance in the NEET, to students from across the country. The AIQ is fixed at 15% of the total number of undergraduate seats in an institution, and 50% of the total number of seats in a postgraduate institution.

Precedent appeared to signal a split verdict in the courts about whether it was permissible for state governments to carve out reservations for OBCs within the AIQ. The root of the seeming split was certain observation in Pradeep Jain v Union of India (the judgment that was the basis for the AIQ in the first place) that seemed to suggest that “merit” could be the only criterion for entry into postgraduate medical courses. Petitioners argued that Pradeep Jain was authority for the proposition that as far as the AIQ was concerned, performance in the open examination (“merit”) could be the only criteria for admissions – thus, ipso facto, excluding reservations.

However, a close reading of Pradeep Jain reveals that that judgment – authored by P.N. Bhagwati J – achieved the seemingly impossible task of simultaneously endorsing three conflicting conceptions of “merit”. Compare the following three paragraphs, all from the same judgment:

Merit cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social, value of a member of the medical profession. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges…

In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground the every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. 

The result is that in any event at least 30 per cent of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be granted purely on merit on the basis of either all India Entrance Exam or entrance examination to be held by the State. Of course, we need not add that even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious student from within such source or sources.

In the first cited paragraph, Bhagwati J propounded a capacious understanding of “merit” that was not limited to performance in an examination. In the second paragraph, Bhagwati J propounded a narrower understanding of merit that was nonetheless consistent with equality if the purpose was to eliminate structural hierarchies. And in the third paragraph, Bhagwati J propounded an even narrower understanding of merit, which was limited to performance in an examination, structural hierarchies be damned. These three conceptions are very evidently at war with each other: for example, if it is true that merit as determined by performance in an examination can be subordinated to concerns of guaranteeing structural equality, then it makes absolutely no sense to simultaneously prohibit reservations under the AIQ – because then, which constitutional guarantee is the Court pegging this prohibition on, if the guarantee of equal protection is not, after all, triggered by reservations?

The upshot of all of this is that Pradeep Jain effectively contradicted itself (repeatedly) on this point, and no clear legal proposition emerges from that judgment. Accordingly, it was open to the Court in Neil Aurelio Nunes to craft its own understanding of the relationship between merit and equality, in light of more general Article 16 precedent. Indeed, this is what the Court did: Chandrachud J traced the history of reservations jurisprudence, noting that after the judgment in N.M. Thomas, the binary opposition between reservations and equality was no longer part of Indian equality law. Referring to his previous judgment in B.K. Pavitra, he went on to observe that:

Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as ―merit‖ reproducing and reaffirming social hierarchies … At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character. (paragraph 24)

This understanding of merit as a social construct then allowed the Court to read the judgment in Pradeep Jain in the following manner:

The observation of this Court [i.e. in Pradeep Jain] that AIQ seats must be filled purely on the basis of merit, cannot be interpreted to mean that there shall be no reservations in the AIQ seats. As noted in Section D.1 of this judgement, merit must be socially contextualised and reconceptualized according to its distributive consequences where it furthers substantive equality in terms of Articles 15 (4) and 15 (5) of the Constitution. The reference to merit in paragraph 21 of the judgment must be read with the previous observations made in the judgment. (paragraph 45)

As I have argued above, the fact that Pradeep Jain was itself internally contradictory made it open to the Court in the present case to reach this conclusion – which it did, on the basis of its reading of the history of reservations jurisprudence more broadly. Once the Court reached that conclusion, it followed inevitably that reservations for OBCs within the AIQ quote were permissible. The government notification was accordingly upheld. The Court also – and in my view, correctly – dismissed two other arguments raised by the petitioners: that, as the AIQ was essentially a “creation” of the Court in Pradeep Jain, reservations within the AIQ quota could only be implemented following a court order; and that the “rules of the game” had been changed midway by introducing OBC reservation into NEET.

The Supreme Court’s structural understanding of merit will be familiar to those who have studied Chandrachud J’s previous judgment in B.K. Pavitra (see analysis here); and the tracing of the evolution of reservation jurisprudence with N.M. Thomas being the inflection point is also a familiar story, which ties into the transformative vision of equality under Articles 14, 15, and 16. It is important to note, however, that there appears to be an increasingly wide split in the Supreme Court’s contemporary reservations jurisprudence. As I have argued elsewhere, even though N.M. Thomas was clear on the point that reservations under Article 16(4) are a “facet” of equality under Article 16(1), and not an exception to it, this position was muddied by Indra Sawhney claiming that a “balance” has to be struck between Articles 16(1) and 16(4). The vocabulary of “balancing” over the last three decades has essentially eroded the holding in N.M. Thomas, and partially taken us back to the binary opposition between “merit” and “equality” that the Court – in this judgment – has (in my view, rightly) deplored.

The most obvious example of this is the stubborn refusal of multiple benches to recognise that – once it is held that Article 16(4) is a facet of Article 16(1) – a right to substantive equality becomes a right under Article 16(1). In other words, as Karan Lahiri has argued previously, Articles 16(1) and 16(4), read together, no longer merely confer a power upon the State to craft affirmative action policies, but also a duty to ascertain existing substantive inequalities, and take affirmative action to remedy them. Courts, however, have consistently refused to recognise this fact, instead repeating – like a mantra – that “there is no right to reservations.” This view of reservations and equality is evidently inconsistent with the N.M. Thomas-inspired view taken by the Court in B.K. Pavitra and, now, in Neil Aurelio Nunes. In my submission, therefore, it is imperative for a Constitution Bench – of at least five judges, if not more – to authoritatively clarify the relationship between merit, equality, reservations, and the relationship between Articles 16(1) and 16(4) under the Constitution, and to lay down clear guidance for future two and three-judge benches that consider specific issues around reservations.

The Marital Rape Exception Case: Two Constitutional Issues

Oral arguments in the constitutional challenge to the exception to Section 375 of the Indian Penal Code [“the marital rape exception”] are presently being heard before a two-judge bench of the High Court of Delhi. In this post, I will focus on two constitutional questions that have emerged during the course of the hearing: first, is “marriage” – or “marital status” – a valid classification for the determining when sexual assault constitutes rape or not; and secondly, will striking down the marital rape exception amount to “creating a new criminal offence”?

Marital Status as an Unreasonable Classification

To avoid getting sidetracked by superfluous arguments, let us first clarify what the marital rape exception does not say. The marital rape exception [“MRE”] does not say that sexual assault within a marriage will not be an offence at all. Such acts will continue to be punished under other criminal law provisions (for example, Section 498A, or the offence of causing grievous hurt). What the MRE does say is that sexual assault within a marriage is legally not rape, and will not be punished as rape.

Highlighting this distinction is essential, because it appears to have become the basis of an attempted constitutional defence of the MRE. Reconstructing the argument from various bits and pieces, the defence appears to be as follows:

1. As a basic principle, consent to sex is fundamental and paramount.
2. That said, marriage is an institution that brings with it certain reciprocal rights and obligations, one of which is a “legal right to expect reasonable sexual relations” (I use this framing only because it is the exact question that was put Hari Shankar J to the amicus curae, Mr. Rajshekhar Rao, during arguments).
3. Consequently, it is constitutionally justifiable to use marital status as the basis for a graded scale of punishment. While it would not be constitutional to let marital rape go completely unpunished, it is valid for the legislature to punish it differently (and to a lesser degree), given the “legal right to expect reasonable sexual relations” within a marriage.

This argument rests upon the premise that the otherwise sacrosanct right to consent is somehow conditioned within a marriage by the “right to expect reasonable sexual relations”, and may therefore be treated differently, as long as it is not erased altogether. This is the legal version of eating your cake and having it too: “yes, consent is important, but also, rape within marriage is not exactly rape.”

In responding to this argument, it is sufficient to state that as of 2022, and as a matter of law, the proposition that there is a “legal right to expect reasonable sexual relations”, that can in someway qualify or diminish the rule of absolute consent, is quite simply incorrect. To understand why, one must examine a seemingly unrelated branch of law: family law, and – in particular – section 9 of the Hindu Marriage Act. Titled “the restitution of conjugal rights”, this section provides a remedy for a situation in which one spouse has “unreasonably” withdrawn themselves from the company of the other.

The relevance of the restitution of conjugal rights to this case is as follows: it is based on the precise logic that underpinned Hari Shankar J’s question to the amicus. The logic of the restitution of conjugal rights (the provision was originally imported from the 1865 Matrimonial Causes Act in England) is that marriage brings with it a legally enforceable right to “conjugal” (i.e., including sexual) relation, breach of which can be remedied by filing a lawsuit. While, over the years, the actual operation of this provision has been rendered largely toothless (it now serves as a springboard for filing a divorce claim, rather than a trigger for forcing an unwilling spouse into the company of the other), its underlying premise remains constant.

Indeed, this logic was recognised by the Andhra Pradesh High Court in the famous case of T. Sareetha v Venkatasubbaiah. In that case, Justice Chaudary struck down the provision precisely because – in his view – it “transferred the decision of whether or not to have sexual intercourse from the individual to the State.” In particular:

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

The argument, therefore, that marital status in any way affected the issue of consent to sex was squarely rejected, and the individual – in this case, the woman’s – right to decisional privacy and dignity was upheld. As is well-known, a year later, Sareetha was overruled by a three-judge bench of the Supreme Court. However, the logic of Sareetha has since been explicitly vindicated in the nine-judge-bench privacy judgment (Puttaswamy v Union of India). A plurality in Puttaswamy specifically noted that:

Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.

The teaching of Puttaswamy is therefore that far from being diminished in the “domestic sphere”, the right to privacy and decisional autonomy of women attains an even higher salience than it might have in the public sphere. It therefore follows that after Puttaswamy, marital status cannot – by definition – be invoked as a ground to condition or in any way qualify the absolute character of privacy as decisional autonomy (and, thereby, the right to consent). Reading Sareetha and Puttaswamy together, we reach the inescapable conclusion that – under Indian constitutional law – any argument that there exists a “legal right to reasonable sexual relations” which qualifies the character of consent, is untenable. And once this argument falls away, the MRE no longer has a leg to stand on: marital status is entirely irrelevant to the question of forced sex being rape, whether within a marriage or out of it.

This conclusion is buttressed by the judgment of the Supreme Court in Joseph Shine v Union of India (the “adultery case”). In justifying the decision to strike down the criminal prohibition upon adultery, Chandrachud J specifically noted that:

“… Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage … marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned …the enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.“

It should be noted that these observations are squarely on point, and clarify that – as held in Sareetha and in Puttaswamy – marital status cannot be a ground to differentiate between the nature and character of the right to consent. And if marital status cannot be a ground for that differentiation, the MRE must fall, as that is the distinction upon which it is based.

Would Striking Down the MRE Create a New Offence?

In the previous section, it was established that the MRE violates Articles 14 and 21. Ordinarily, this should be all the reason that is needed to strike it down. A knotty question, however, presents itself: is a Court authorised to strike down a law if it results in the creation of a new criminal offence?

Would striking down the MRE result in the expansion of the scope of criminal law? In a trivial way, yes: hitherto, married men could not be prosecuted for rape. Now they can. A class of individuals who enjoyed legal immunity from criminal prosecution for a specific offence have now lost it. In that very literal sense, yes, the scope of criminal law has been expanded.

However, it is important to parse this further. The MRE exists in criminal law as a specific immunity, for a specific class of people, from being prosecuted for a specific offence. The ingredients of the offence (in this case, rape) have been set out in the substantive part of Section 375 of the IPC. The MRE does not in any way affect that. The MRE does not say, for instance, that “there is always deemed consent to sex within a marriage” (although it could have). The MRE simply decrees that although all the legal elements of rape have been satisfied, if a married man has committed the offence, “it is not rape”. The MRE is legal fiction in its truest sense: it simply takes a class of people outside the ambit of a defined offence, for no reason other than the fact that they belong to that class.

Consequently, all that striking down the MRE will do is to remove the immunity from prosecution for rape from married men (an immunity that, for the reasons discussed above, is founded upon unconstitutional reasons). To take a parallel example, imagine a second exception tacked on to Section 375: “provided that, sexual intercourse by a man who is a registered member of a political party, is not rape.” If this exception is challenged before the Court, can anyone be heard to say that the Court cannot strike it down because to do so “would be to create a new offence”? I believe not; and if the arguments in the previous section are correct, then there is no material difference here between “member of a political party” and “married man”.

It should further be noted that – for the reasons advanced above – striking down the MRE is not going to open up a parade of horribles where every criminal law can be challenged on constitutional grounds, starting with the rape law itself, on the ground that it is not gender neutral and therefore violates the right to equality. There are, of course, many arguments for why rape law should be made gender-netural – and indeed, how it should be made gender neutral, in a way that reflects the realities of patriarchy and institutional power. However, to change rape law in a way that makes it gender neutral would actually require the Court to adjudicate upon questions of legal policy, and – ultimately – to legislate. There is an entire set of legislative models for accomplishing this outcome, and it is not for the Court to fashion or craft legislative models. However, none of these concerns apply to the question of striking down the MRE: the removal of an arbitrary immunity based on marital status has no equivalence with refashioning the criminal law from one understanding of gender and structures of power, to another.

It should be further noted that this does not also mean that every criminal law immunity – or mitigation of punishment – will become vulnerable to challenge, and a marauding judiciary will then jump upon the opportunity to cut back everyone’s criminal law rights. Suppose, for example, that there is a law that says that in a case of damage to property, the fact that an accused was acting upon a genuine belief that she was protecting the environment, will be a mitigating factor in sentencing. A court striking down the MRE will not serve as a justification for striking down this hypothetical law: to do so, it will have to be shown that the political choice that the legislature has made to treat environmentally-motivated crimes in a less serious way, is equivalent to the gender-discriminatory decision that marriage makes consent less salient.

Finally, a quick note: the Supreme Court has already done this. In Independent Thought, the MRE was removed in case the wife was between fifteen and eighteen years of age. This is not to say that Independent Thought controls the outcome in this case; it is, however, precedent for the proposition that Courts can – and should – strike down an arbitrary immunity of this kind.

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Disclosure: I was involved with the drafting of one of the petitions before the High Court in 2017. I have not been formally involved with the case since 2019.

Notes From a Foreign Field: The Botswana Court of Appeal’s Judgment Decriminalising Same-Sex Relations [Guest Post]

[This is a guest post by Karan Gupta.]

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Earlier this week, a full Bench of the Botswana Court of Appeals (CoA) in Attorney General v Letsweletse Motshidiemang partly upheld the High Court’s (HC) judgment (analysed here) which decriminalised same-sex relations. Commending the ‘erudite’ and ‘searching’ judgment of the HC, the judgment inducts Botswana into a group of countries such as India (here), and Angola (here) which have recently struck down similar provisions criminalising same-sex relations and away from the judgments recently issued by the High Courts of Kenya (here and here) and Singapore (here). In so doing, the CoA affirmed the equal moral membership under the Botswana Constitution of individuals who identify with same-sex relations. The judgment is commendable for its careful navigation of the arguments raised, which I explore, in seriatim.

Setting the context

The case concerned criminal provisions germane across former British colonies. The impugned provisions of the Penal Code 1964 [Sections 164(a); 164(c)] criminalised relations ‘against the order of nature’ which had been judicially interpreted to outlaw same-sex anal intercourse. Both sides presented now familiar arguments in cases concerning the decriminalisation of same-sex relations. The appellant (Botswana Government) argued that the provisions were not enforced, were gender-neutral (and was hence not discriminatory), prohibited only certain sexual acts limited to anal intercourse and did not cause or perpetuate prejudice, stigma and oppression. The Respondents (and the Amicus  – Legabibo) urged that though the provisions were gender neutral, the effect was discriminatory in singling out same-sex relations for criminalisation, they violated the fundamental rights to liberty, dignity, privacy and equality before the law, did not constitute permissible restrictions of these fundamental rights, and amounted to discrimination on the basis of sex.

Section 3 of the Botswana Constitution guarantees to every person in the Country (whatever their ‘sex’), the fundamental right to life, liberty, security and privacy of their home and property. Section 7 guarantees that no individual shall be subjected to torture or to inhuman or degrading punishment or other treatment. Section 15 stipulates the fundamental right against discrimination on enumerated grounds (including ‘sex’). Though arguments were urged before the High Court of Section 7, the CoA restricted itself to the other fundamental rights on the basis that no finding was returned by the High Court on the provision, nor was any appeal filed on this ground (paragraphs 8, 10)

At the arguments before the CoA, the appellant restricted its arguments to three principal grounds (35, 110): First, that the High Court ignored stare decisis in that it was bound by the 2003 CoA decision in Kanane, where a constitutional challenge to the same provisions was squarely rejected (22, 37); Second, a change in law is essentially a policy matter within the exclusive domain of the democratically elected legislation. Any adjudication amounts to impermissible judicial law-making (10, 74); and Third, the High Court erred in failing to apply Section 15(9) – a ‘saving’ constitutional provision which preserved and protected from discrimination-scrutiny statutory provisions which existed at the time the Constitution came into force (35, 36, 91). Consequently, the CoA dedicates a significant part of its judgment addressing these arguments.

Kanane and the tides of change

In Kanane, the CoA rejected a constitutional challenge based on Section 3 and 15 of the Constitution to the impugned provisions. The High Court distinguished the CoA decision in Kanane on the ground that the judgment delivered in 2003 had explicitly noted that Botswana was not then ready for the decriminalisation of same-sex relations. The CoA, on a careful reading of its earlier decision, agrees with the High Court (57). As such, the constitutional findings in Kanane were not categorical, but conditional i.e., the CoA in Kanane, though supportive of the ‘rights of the gay community’ (64), had expressly stated that “the time had not yet arrived” to strike down the provision “at this stage”. Thus, there was no need to distinguish a case, which had left open a window for future evidence to be lead which may point to a different conclusion (55-58). As for the evidence, the CoA reproduces and notes that judicial opinions and public opinion (including statements by Heads of State) since 2003 reflected a ‘progressive change’ (62) which indicated that the ‘tide has turned’ (65). Given the ‘adequate evidence of the change of attitude’, ‘sex’ in Sections 3 and 15(3) was held to include ‘sexual orientation’ as well as gender identity. Consequently, the CoA holds that the HC’s judgment under appeal reflected a logical progression (71) and did not contravene the principles of stare decisis.

The holding of the CoA on this count is broadly in line with the constitutional interpretive technique in Botswana committed to living-tree constitutionalism. Broadly speaking, this asserts that constitutions do not reflect stable and fixed pre-commitments and legitimate constitutional interpretation involves development and change in constitutional law through interpretation by judges, in a manner keeping it abreast of changes in society, politics, culture and legal systems. The CoA had earlier affirmed in Attorney General v Dow (1992) that the Constitution is not a “lifeless museum piece” but a living constitution which should “meet the just demands and aspirations of an ever-developing society”. Similarly, the High Court below had held that the “living and dynamic charter of progressive human rights, serving the past, the here and now, as well as the unborn constitutional subjects.” (HC, 76).

Interestingly however, whilst the doctrine is often employed to interpret constitutional provisions in their application to circumstances unforeseen/unimaginable to the drafters (for instance, privacy in an emerging digital age), the CoA employs it to interpret the substance of constitutional rights on the basis of changing public opinion. Such approach beckons obvious caution – public opinion, is by its very nature, in a state of flux and influenced by majoritarian tendencies. Constitutional principles cannot be subject to the vicissitudes of public opinion. The CoA, in then recognising that public opinion cannot on its own be grounds for striking down provisions (66), finds support for its conclusion in the ‘proper independent evidence’ which to it demonstrates the effect of such provisions – the perpetuation of stigma and exclusion, which undermines the constitutionally guaranteed rights to liberty, privacy, dignity and the equal protection of law (67). To distinguish its earlier holding in Kanane, the CoA is pushed to build on the window left open by it. Despite this, it carefully reiterates common-place principles of constitutionalism – that it is rights-violation and not public opinion which invites judicial review.

Separation of Powers and democracy deficit

Perhaps the most interesting observations are in CoA’s rejection of the Government’s argument that the separation of powers reserves to the legislature exclusive power in matters of policy. It is the sole prerogative of a democratically elected legislature, it was argued, to amend or repeal the impugned provisions.  The CoA decisively rejects this and holds that policy matters, though within the domain of the legislature, are tested against the anvil of constitutional provisions and principles (86, 90). Where fundamental rights are breached, it is the role and responsibility of courts to ‘tweak’ the meaning of legislation to bring it in line with the Constitution (81, 83). So far as constitutional principles go, this is now fairly well-settled. It is the observations thereafter that are significant in inviting attention to political processes and judicial review.

The CoA effectively observes that that political process by which legislation is enacted is often tainted by the will of the majority and may not be suited for the protection of minorities (82). It observes:

“82…the views and concerns of individuals, or of minority or marginalised groups will carry as little weight as their voting power dictates”

“88. It is most unlikely that the popular majority as represented by its elected members of Parliament, will have any inclination to legislate for the interests of vulnerable individuals or minorities, so the framers, in their wisdom, allocated the task and duty to the judiciary.”

These observations are significant. In recognising that legislative reform may take two distinct paths (one through the democratic mandate of the elected parliament, and second, through judicial review of legislation by courts in a bid to protect minority rights (89)), the CoA squarely positions itself to give effect to the constitutional guarantee of equality by addressing and remedying majoritarian democratic deficit in legislative and political processes. Where elected legislatures may represent majoritarian desires, the political process is ill-suited for the protection of certain identities and minorities. To argue then that the protection of identities and minorities is a policy matter within the domain of the elected legislature alone, is to subject such protection to purely majoritarian impulses and insulate it from principles of equality enshrined in the Constitution.

Recall here a similar observation in the infamous ‘fn 4’ in United States v Caroline Products by the Supreme Court of the United States. Justice Stone noted that a more ‘searching judicial enquiry’ (which was later interpreted to mean strict scrutiny)may be required where prejudice against minorities curtail the operation of the very political process relied upon for their protection. In such cases, it is futile to assert that the judiciary has no role whatsoever. In making the above observations, the CoA sets up a normative defense of judicial review of legislation which arises from a specific role attributed to it – a role informed by the equality guarantee in the constitution. In rejecting the Government’s contention, the CoA affirms that constitutional values prevail over majoritarian politics.

Section 15(9) and the ghost of a colonial past

The Government argued that the Penal Code 1964 was promulgated prior to the coming into force of the 1966 Constitution. Section 15(9), a saving clause, insulated from challenge these laws against discrimination claims arising from Section 15. The CoA recognises that these statutes are ‘legislation for the people, not by the people (93), and noted that this form was common to former British Colonies.

The CoA notes that whilst the Botswana judiciary has frowned upon blanket insulation of these laws from constitutional scrutiny, two reasons peculiar to the impugned provisions are grounds to reject the arguments – first, prior to rape laws being made gender-neutral to include men as potential victims/survivors, the impugned provisions protected men and boys from the act (101). Thus, the ‘public interest’ role earlier served by the impugned provisions was subsumed by virtue of the amendments to the rape law. What remained then was ‘ancient biblical condemnations’; second, the saving clause protected laws vis-à-vis the discrimination scrutiny at a time when neither sex nor sexual orientation were its part. (103). Given their inclusion, the impugned provisions are not protected by Section 15(9). The CoA rightly notes that where legal provisions derogates from fundamental rights, the saving clause must be accorded a restricted and narrow interpretation (103, 108). Consequently, Section 15(9) could not be read to protect from scrutiny the impugned provisions.

Privacy beyond a closet (spatial sense)

As the arguments urged orally were restricted to three grounds, the CoA briefly marks its agreement with the High Court’s reasoning on liberty, privacy and dignity vis-à-vis Sections 3 and 15 (110). Here however, the judgment is worthy of commendation for another reason. Despite its short approval of the observation by the HC, it rightly sets an expansive idea of privacy by noting that the ‘full scope and reach’ of the constitutionally guaranteed right is not restricted to a spatial sense, but extends to personal choices (112). What this means is that the right to privacy is not limited to the private confines of the bedroom, but more broadly to decisional autonomy.

This is crucial because as I have argued before, provisions such as those impugned do not criminalise specific acts, but a set of identities.  Many times, the HC errs in reducing the right to privacy to a spatial sense in its constitutional scrutiny of the impugned provisions (HC, 3, 126, 127, 189, 214, 215, 223. “Should private places and bedrooms be manned by sheriffs to police what is happening therein”). This is because the HC also reduces sexual orientation from an identity to merely a sexual act (HC, 144, 151, 164, 169, 206. “…only mode of sexual expression is anal penetration”). Though the CoA falls to a similar reduction occasionally (7, 15, 54), the brief observations on privacy towards the end rightly set the ground for a more expansive jurisprudence which could argue that the public assertion of identities by those who identify with same sex relations are just as crucial to ensuring the equal moral membership of these individuals. Recall here that the move from acts to identities and from private (spatial) to private (decisional autonomy) animated the entire judgment of Justice DY Chandrachud in Navtej. Though the CoA sometimes falls to the trap of brief in these observations, the observations of CoA are bound to progressively inform and influence the development of jurisprudence in Botswana.

Conclusion

In carefully navigating the arguments urged by the Government as well as its previous decision in Kanane, the CoA explicitly recognises the stigma, prejudice, vulnerability and exclusion faced by same-sex relation individuals by relying on expert evidence filed by the Amicus as well as studies authored by the Botswana government itself (15-17). It calls to attention the fear of arrest and the exclusion from access to public health facilities. Crucially, it notes that such sitgmatisation persists ‘at all levels of society’ which will continue even after the striking down of the impugned provisions (16). In so doing, the CoA signals that ensuring the equal moral membership of these individuals is not restricted to circumscribing state action alone, but must be informed by a broader cultural permeation of constitutional rights in the horizontal and inter-personal relations between individuals. The recognition of this aspect rightly brings to attention that judicial intervention is but a first step towards ensuring equality, not conceptualised merely as the absence of legal barriers but as creating an environment sans social barriers as well in which these identifies can foster, thrive, and be afforded the guarantees enshrined in the Constitution. In political theory that is oft-dominated by the jurisprudence of western courts and authors, the judgment of the CoA promises to ring loud. The judgment is worthy of commendation.

Equality, the Family, and Unpaid Domestic Work: The Judgment of the Kenyan High Court in MW v AN

In an interesting judgment delivered earlier this month, the High Court of Kenya at Nakuru held that the housework and care-work performed by a female spouse (the plaintiff) entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage. The facts of MW v AN were that the parties were married in 1990, separated in 2003, and divorced in 2011. The dispute centred upon the fate of a house constructed at Nakuru. While the house was registered in the name of the male spouse (the defendant), the plaintiff argued that she had taken out extensive loans to finance the purchase of the land and the construction of the house. Moreover, despite having a job herself, she had been the sole care-giver in the family. The defendant, for his part, argued that not only had he bought the plot on his own, but had also been providing financial contributions towards the upkeep of his wife.

Matheka J observed that Section 6(7) of the Matrimonial Property Act of 2013, matrimonial property “vests in the spouses according to the contribution of either spouse towards its question, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” In Echaria v Echaria, it had been held by the Court of Appeal that where there was a “substantial but unascertainable contribution” by both parties, a default rule of equal division would apply. The question, of course, turned upon the meaning of the word “contribution.”

In this context, Matheka J observed that “contribution” would have to include not only tangible financial contribution, but also the “unseen” contribution of housework and care-work. In paragraph 38, she observed:

This other part of mothering, housekeeping and taking care of the family is more often than not not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be a tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job … hence for a woman in employment who has to balance child bearing and rearing this contribution must be considered. How do we put monetary value to that process where a woman bears the pregnancy, gives birth, and takes care of the babies and where after divorce or separation she takes care of the children single handedly without any help from the father of the children … Should this court take this into consideration when distributing matrimonial property where the husband as in this case is left in the matrimonial home where the wife rents a house to provide shelter for herself and the children? I think it should count, especially where the husband has not supported the raising of the children, has not borne his share of parental responsibility.

Furthermore, this would have to be determined by evidence:

It is time that parties took time to give evidence, sufficient enough to support the value to be placed on the less obvious contribution. It is unfair and unjust for one party to be busy just making their money (the ‘seen’ income) while the other is doing two or three other jobs in the family whose income is ‘unseen’ and then claim this other one did nothing. This attitude is so entrenched we still hear women especially who are housewives say: sifanyi kazi (literally I do not do any work) simply because they do not leave the home to go earn money elsewhere. (paragraph 39).

Consequently, Matheka J held that notwithstanding the fact that the matrimonial property was registered in the name of the husband, the maximum “equality is equity” would apply, and that consequently “the property be valued, sold and each party have 1⁄2 share of the proceeds of the sale.”

The judgment of Matheka J is important because of the explicit recognition it gives to “unseen” and unpaid housework, within the context of domestic relationships; as has been well established by now, across the world and across societies, within the institution of the family, the burden of such work is gendered in nature (see, e.g., The Second Shift) – and often, unseen and unpaid domestic work by the female spouse is what “frees up” the male spouse to enter the labour market and engage in the kind of financially remunerative work that, ultimately, results in (for example) matrimonial property being bought with “his” money, and therefore registered in his name. Thus, departures from traditional notions of property are essential in order to do justice in and within the institution of the family.

It is important to contextualise this judgment, both within the framework of Kenyan and comparative law. In Kenya, the default position used to be (as in many other countries) that only financial contributions were to be taken into account in calculating respective shares in the matrimonial property upon dissolution of marriage. Explicitly seeking to change this, the Kenyan Constitution of 2010 contained Article 45(3), which – borrowed from CEDAW – states that “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.” In her book, Equality in Kenya’s 2010 Constitution (2021), Dr. Victoria Miyandazi notes 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) In Agnes Nanjala Williams vs Jacob Petrus Nicholas Vandergoes, the Court of Appeal directly applied Article 45 between two private parties to mandate an equal division of assets between the spouses, even in the absence of a statutory framework (“horizontal application of rights”).

This position, however, was arguably overruled by the Matrimonial Property Act of 2013, which required judges to take into account the relative contributions of the spouses (as indicated above), but also explicitly specified that the word “contributions” included “domestic work, childcare, and companionship.” The Matrimonial Property Act was challenged in Federation of Woman Lawyers on the basis that the displacement of the 50% rule in favour of “non-monetary contributions” would restore the gendered inequality within marriage, based on the difficulty of calculating non-monetary contributions. This challenge, however, was rejected by the Court.

In that context, the judgment in MW v AN is important, as it essentially restores the position of the default equality rule where there is evidence of “non-monetary contribution”, and allays fears that judiciaries that might not have entirely broken out of patriarchal norms will use the vagueness of the statutory clause to devalue housework or care-work.

Furthermore, this is a position that has been advanced by progressive courts across the world. Perhaps the most outstanding example is New Zealand, where the Property Relations Act of 1976 established a presumption of equal sharing at the time of dissolution, and specifically provided that financial contribution was not to be treated as weightier than non-financial contribution. In numerous judgments interpreting the Property Relations Act, the New Zealand courts have interpreted it with a few towards fulfilling the statutory purpose of achieving the “equal status of women in society”, holding, for example, that wherever the provisions of the Act were ambiguous, the default presumption would be in favour of the property being matrimonial/joint (and therefore, subject to equal division).

Indeed, Matheka J’s language is also remarkably similar to a 1992 judgment of the Colombian Constitutional Court. In Sentencia No. T-494/1992, the Constitutional Court was considering the eviction of a widow from the matrimonial home; the widow’s non-monetary contributions had not been taken into account in determining whether or not she had a legal interest in the home. The Constitutional Court noted that such a position would have the effect of “invisiblising” domestic work, and deepen inequalities within social relations. The Court went on to question the “artificial” distinction between “productive” and “non-productive work”, and noted that refusal to factor in unpaid domestic work would violate the Colombian Constitution’s guarantee of equality and non-discrimination.

The judgment of the Kenyan High Court, thus, joins a global constitutional conversation of how institutional inequalities within the family may be judicially redressed; and it also, I submit, advances the goals of Article 45(3) – itself a fascinating constitutional provision. For these reasons, it deserves careful study by students of comparative constitutional law.

Guest Post: The Supreme Court’s Tribunals Judgment – I

[This is a guest post by Shubhansh Thakur.]

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In a judgement dated 14 July 2021, the Supreme Court (“SC”) in Madras Bar Association v. Union of India struck down certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021(“Ordinance”) by a majority of 2:1. Nageshwar Rao, J, authored the leading opinion to which Justice R. Bhat expressed his concurrence in a separate opinion. On the other hand, Justice Hemant Gupta authored his partially dissenting opinion.

The petition was filed by the Madras Bar Association (“MBA”) under Article 32; however, the grounds of challenge were not restricted to Fundamental Rights under Part III, giving rise to the issue of maintainability (Maintainability Issue). Among other grounds, the Ordinance was argued to violate the Constitution’s basic features such as Independence of judiciary and separation of powers. Additionally, the Ordinance was also attacked on the ground of violating the previous directions of the court relating to tribunal appointment and conditions of service.

Initially, the author will lay down the background of the dispute as it played a pivotal role in shaping the court’s decision. In this part, the author will analyse the maintainability issue while leaving other challenges for the next part.

THE CHEQUERED HISTORY

As highlighted, since one of the grounds of challenge was concerning previous court directions, it is pertinent to take note of those directions and analyse them to the limited extent of their relevance to the case at hand.

MBA-I

Several provisions of the erstwhile Companies Act relating to the formation of tribunals were assailed before the Madras High Court (“HC”) in MBA-I. The challenges were ultimately carried forward in appeal before the SC. The SC upheld the power of Parliament to transfer judicial functions from the courts to the tribunals. However, it declared Part I-C and I-D of the impugned Act unconstitutional and issued directions for making certain amendments before the provisions could be brought into force. Interestingly, the Union of India (UOI) agreed to make suitable changes before the HC, leading the SC to direct:

“However, Parts I-B and I-C of the Act, may be made operational by making suitable amendments, as indicated above, in addition to what the Union Government has already agreed to in pursuance of the impugned order of the High Court.”

The use of the words like “may be made operational” and “as indicated” leads us to believe that the SC merely issued some directory guidelines for the UOI to cure the defects. However, there is nothing to indicate that the court envisaged them as binding before fresh legislation is brought. Interestingly, the UOI had also agreed to make specific changes in the Companies Act. The effect of this agreement will be analysed while dealing with the subsequent challenges; however, for the time being, it is sufficient to point out that such consent should not bind or estop the government.

Among various other directions, it was provided that the tenure of the members to be appointed should be increased from three years to five or seven years, along with reappointment if deemed appropriate by the committee responsible for recommending the names to the scheduled tribunals. With the retirement age of 65 years, the SC believed that such a short tenure of three years was tailored to make these tribunals a retirement haven for HC judges who retire at the age of 62 years. However, considerably longer time would be required for legal practitioners before they could acquire expertise in dispute adjudication, and three years’ tenure would prove insufficient.

The SC also pointed out that the competence of the person to be appointed is different from suitability. For suitability, experience, maturity, and status are required in addition to experience for the post.

MBA-II

The Companies Act, 2013, replaced the erstwhile Companies Act of 1956, which came to be challenged in MBA-II. However, several of the provisions that were declared unconstitutional were either copied verbatim or, in essence, in the new Act. It is unnecessary to deal with the issues separately apart from noticing that the court struck down several provisions because they were copied verbatim in the new Act without substantial changes. Additionally, the court was motivated by concerns around the independence of the judiciary in striking down the sections, but not solely on the ground that the sections failed to comply with its previous directions (See ¶27,28,30,31.3, 33). The fact of the matter is that the statutory enactment failed to remove the defect mentioned and further undermined the independence of the judiciary and separation of powers.

Interestingly, section 413 of the same Act, which provided that a person who has not completed 50 years was ineligible for appointment in the tribunals under the Companies Act, remained unchallenged as it stood.

Rojer Mathew

After that, in Rojer Mathew v. South India Bank, among several other challenges, the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017 were assailed by the petitioner. The rules were struck down in their entirety, as they took away the judicial control in tribunal appointments and compromised the independence of tribunals. One rule provided for different ages of superannuation for chairman, vice-chairman, and members. This rule was struck down as violative of the parent Act, which sought uniformity in the tribunal appointment (¶175.2).

The rule prescribing a uniform tenure of appointment for the advocates elevated as members of the tribunals and retired HC or SC judges was also struck down because it sought to create equality among the unequal (¶175.1). It was also held that the short tenure of three years would deter practicing advocates from accepting the appointment in tribunals, as they would have to give up their practice for a meagre tenure of three years. It led the court to direct that tenure of five to seven years must be considered with a chance of reappointment. (¶172). It was also reiterated that MBA-I recommended a more extended period for appointment based on these principles. After the rules were struck in their entirety, the following interim relief was granted:

“We, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh rules in accordance with the majority judgment. However, in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new Members.“

It is clear from the reading of the above direction that the court never intended these interim directions to attain finality; instead, they merely wanted the interim directions to continue as long as there is inaction on the part of UOI and to keep the tribunals operational. The court merely fettered the power for withdrawing the financial benefits and nothing more.

MBA-III

The rules were subsequently reframed and were assailed in MBA v. UOI (“MBA-III”). The rules excluded advocates from being considered as Judicial Members to certain tribunals, while for others, advocates having a minimum experience of 25 years were made eligible. The Attorney General, in his submissions, assured the bench that the advocates would be made eligible for all the tribunals provided they had the experience of 25 years at the bar (¶39). The SC, however, held that the experience at the bar should be nearly equivalent to that required for an HC judge, i.e., ten years. Thus, the rule was directed to be amended to make younger advocates eligible for appointments. It was held (without reference to authority) that “A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.” The argument seems to be ex-facie erroneous because a more experienced candidate is always valued more. In any case, the state cannot ensure that every person appointed as a member of the judiciary must have employment for a lifetime.

The rules regarding appointment and condition of tenure similar to the one provided for in the present Ordinance’s Sec.184(11) were also given the retrospective effect. The court held that the subordinate legislation could not be given retrospective effect as the parent statute did not authorise such retrospective application. Due to this, the following interim direction was issued:

“According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment”

In essence, the interim order of Rojer Mathew merged with the MBA-III with some clarification. In this context, it is essential to note that this case was unique where there was a dialogue between the bench and Attorney General(AG), where he agreed to make changes in the rules as per the court’s directions. (See ¶41,47)

Before moving ahead, the author wants to highlight certain aspects that emerge out of the reading of the judgments, which will be used subsequently in the analysis: in MBA-I and MBA-II, the UOI defended legislation, which requires the assent of the Houses of Parliament and of the President. However, In Rojer Mathew and MBA-III, the UOI acted in its executive authority, as it was defending the rules that it framed udnder the authority of the parent Act.

ANALYSIS

Regarding maintainability, Rao J and Gupta J do not seem to add much apart from holding that a statute can be challenged to violate the separation of powers and independence of the judiciary, which flow as a necessary concomitant of the rule of law. This concept emerges out of equality and Article 14. It is submitted that such observations seem to depict a rather vague and subjective approach where every and any violation can be related to the rule of law and equality clause to invoke the writ jurisdiction. If such an approach is taken to be the standard for admitting a writ petition under Article 32, then even a statutorily imposed duty’s violation would equally breach the rule of law, and the court must not hesitate to admit such a petition. The postulates of separation of power and independence of the judiciary have various constituents spreading across the entire Constitution. The court should only interfere in a matter under Article 32 when one of these constituents either flows directly from or is intrinsically connected to the text of Part III.

There is a specific power conferred to the Parliament to enlarge the SC’s jurisdiction (Art.138) and issue writs for purposes other than those mentioned in Article 32(Art. 139). Here the negative Act of the Parliament abstaining from making the law also results in the exercise of that power intended to keep the jurisdiction of the SC restricted. It is thus difficult to discern how the SC has taken itself to adjudicate such disputes that are loosely connected to rights under Part III or instead interpreted in such a manner to relate them to rights under Part III in the guise of acting as the protector of the Constitution. The court must attempt to develop a test that brings in more objectivity and uniformity in the entire process of admission of the writ petition.

When the reason to interfere is not intrinsically and closely connected to part-III rights, the SC must attempt to refrain from admitting the petition. Instead, it should grant the liberty to approach the HC under Article 226, which enjoys a similar status as SC, i.e., acting as a Constitutional court, but with a wider jurisdiction.

Justice Bhat’s judgment fills the gaps in the reasoning of Rao J, and Gupta J in the development of a viable test. At first, he seems to avoid the issue of maintainability, observing that:

“It is therefore, too late in the day to contend that infringement by a statute, of the concept of independence of the judiciary – a basic or essential feature of the constitution, which is manifested in its diverse provisions, cannot be attacked, as it is not evident in a specific Article of the Constitution.”

However, he later goes on to depict a close and intrinsic relationship between the provisions of the Ordinance and the right to approach the SC under Article 32, when he observes:

“Therefore, it is the “equal protection” of laws, guaranteed to all persons, through institutions that assure the same competence of its personnel, the same fair procedure, and the same independence of adjudicators as is available in existing courts, that stands directly implicated. Consequently, when this court scrutinizes any law or measure dealing with a new adjudicatory mechanism, it is through the equal protection of law clause under Article 14 of the Constitution.”

The reasoning reflects a viable test to confer jurisdiction. It is settled that the Parliament has the power to transfer disputes from courts to the tribunals. This exercise will have to carry forward the same standards as would have been available with the traditional set-up. In other words, the forum for adjudication may be made different by the Parliament, but similar protections pertaining to independence and impartiality, as were available in the traditional set-up, should be equally provided. This test shows how Article 14 is relevant to testing other articles of the Constitution relating to the appointment, independence of courts sought to be replaced or supplemented by the tribunals.

The next part will deal with and analyse the substantive challenges to the Ordinance in the context of the previous directions of the courts, as mentioned in this part.