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

Tags

article 14, Citizenship, Equality

[This is a guest post by Abhinav Chandrachud.]

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

Hidden Constitutional Premises:

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

The CAA Is Discriminatory:

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

Underinclusion, or the Chief Justice Patanjali Sastri Defence

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

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

The CAA is only part of the problem:

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

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

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

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

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

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

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

Tags

article 14, classification test, Equality

(This is a guest post by Varun Kannan.)

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

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

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

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

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

 

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

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

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

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

The validity of the religion and country-based classification

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The validity of the cut-off date-based classification

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

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

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

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

Conclusion

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

The Constitutionality of the Citizenship (Amendment) Act: A Response

Tags

article 14, Citizenship, citizenship amendment act, discrimination, Equality

[This is a guest post by Shivam Singhania. The piece was written before the passage of the Bill into an Act, and the constitutional challenge to the Act. References to the “Bill”, therefore, may be understood as references to the Act.]

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This piece is in response to the piece on this blog titled “The Citizenship (Amendment) Bill is Unconstitutional”. Respectfully disagreeing with the author, I shall endeavour to address the arguments against its constitutionality, and also chart out a path within the bounds of the settled judicial precedent on Article 14.

The bill changes amends the Citizenship Act on two counts – by inserting a proviso in Section 2(1)(b), and by amending clause (d) of the Third Schedule. The first count, i.e., the proviso, provides that ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’ will not be treated as an illegal immigrant under the Act, subject to three conditions: (a) he/she entered India on or before December 31, 2014, (b) is exempted by the Central Government under Section 3(2)(b) of the Passport (Entry into India) Act, 1920, (c) is exempted from the application of Foreigners Act, 1946.

(Note: The Passport Act empowers the Central Government to make rules requiring persons entering India to possess passports. It also gives the Central Government power to exempt, conditionally or unconditionally, any person or class of persons from complying with such requirements. The Foreigners Act empowers the Central Government to make orders prohibiting, regulating, restricting entry of non-citizens, i.e., foreigners into India. The Central Government also has the power to exempt any individual or class or description of foreigner from the application of the act. The exemptions for Bangladeshi and Pakistani nationals were issued in 2015, and included Afghanistan nationals in 2016. These exemptions have not been challenged. Further, the same classification exists for the purpose of issuing Long Term Visas (LTV) to nationals of these three countries. The same has also not been challenged.)

The second count, i.e., amendment to the Third Schedule, relaxes the time-criteria for naturalization from at least 11 out of 14 years to at least 5 out of 14 years of residing in India, or being in service of the Government, for ‘any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan’.

Admittedly, the constitutional questions rest on the issue of discrimination and non-adherence to ‘equal protection of law’.

CLASSIFICAITON UNDER ARTICLE 14

The Constitutional position, right from Anwar Ali Sarkar to a catena of subsequent cases, is clear that the equality principle envisages like to be treated alike, and consequently allows unlike to be treated differently. Such differentiation, however, has to stand the test of intelligible differentia, i.e. that the basis or principle guiding the creation of different groups meant to be treated differently by the law should be ascertainable and sound. Further, such differentia should have a rational nexus to the object of the law, meaning that t should directly further the purpose that the law seeks to fulfil. Subsequently, the test of arbitrariness was also added in E.P. Royappa.

The classification in this amendment, as rightly described by the author, is on two counts: first – religion of the target group, i.e., Hindus, Sikhs, Buddhists, Jains, Parsis and Christians; and second – country of origin of these groups, i.e., Pakistan, Bangladesh and Afghanistan.

It will be shown in the course of this essay that the principles that ground the above classifications are intelligible and not under-inclusive and serve the object of the amendment and overall, are not arbitrary.

RELIGION, ARTICLE 14 AND ARTICLE 15

Over and above the generality of equality principle laid out in Article 14, Article 15 provides for prohibition of discrimination on specific grounds, such as race, sex, and also religion. This means that any such basis of classification, even if intelligible, cannot pass muster of Article 14 for reason of the specific prohibition in Article 15.

However, Article 15 applies only to citizens. On the other hand Article 14 applies to ‘any person’. Thus, as settled in Chandrima Das and Indo-China Steam Navigation cases, a non-citizen cannot take the benefit of Article 15. Thus, with respect to non-citizens, a classification which has religious inklings cannot be dismissed at the threshold; it will pass muster if it passes the tests of Article 14 discussed above.

We now address the author’s argument based on the concurring judgement of Justice Malhotra in Navtej Johar v Union of India. The author’s inference from certain portions of Justice Malhotra’s opinion Navtej Johar is misplaced. The quoted paragraph – “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy” – lays out the underlying constitutional intent of Article 15. It does not, and is not meant to address the point of whether such grounds transcend Article 15, and apply as a bar upon classification ipso facto, including for non-citizens under Article 14

The following exposition from the judgment, admittedly, is unequivocal: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. However, what begs an answer, and none is provided in clear terms by any judicial precedent, is whether certain grounds, beyond those in Article 15 and thus applicable to non-citizens, are barred at the threshold as the bases of any classification; if yes, then what are these grounds and do ‘intrinsic and core trait(s) of an individual’ qualify as such grounds?

Essentially, the submission of the author, relying on Justice Malhotra’s opinion, is that any classification with semblance to religion is impermissible, since like Article 15, which applies only for citizens, Article 14 contains an inherent bar upon classification on certain grounds, one of which is the notion of core trait/choice/personal autonomy (and religion is a part of that). This, however, has little basis in existing equality jurisprudence. The tests are clear and any classification can exist so long as the tests of Article 14 are met. Beyond that, no inherent barriers have been created for classification under Article 14.

In any case, the proposition that classification rests solely on religion should be taken with scepticism. In the CAA, religion is qualified by persecution. Therefore the two should be considered together. Religion persecution has also been recognized in the Refugee Convention as a form of persecution. Therefore, it cannot be considered as a capricious standard of marking the lines, given that the exact target groups are sought to be protected as recognized by International Convention. Further, the classification is not to create new benefits, but is only to accelerate an existing process as a measure of protection for recognizable and internationally accepted target group that, due to their precarious situation, need such protection. It is akin to any law which may be framed for instance to protect LGBT individuals from countries which provide for capital punishment for them. In that case, it will be a constitutional disservice to accept an argument that they cannot be allowed a dignified life in India because the law classifies on the basis of sex/sexual orientation.

THE PRINCIPLES CONUNDRUM AND UNDER-INCLUSIVENESS

A classic fallacy with the arguments on under-inclusiveness, also reflected in the author’s piece, is that its proponents enlarge either the principle determining classification, or the object of the law beyond their actual bounds, to argue that the classification is narrower than it ought to be.

It will be shown that the author’s purported principles determining the classification is deliberately broad, and the actual principle is more qualified. Therefore, when the purpose is defined properly, the classification is not under-inclusive.

The author, in her piece, considers four principles and finds them inadequate. For convenience, they are reproduced below –

1. “Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
4. Principle 4: The classification might be limited to singling out persecuted religious minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.”

The classic problem of “inadequate principle” is at issue here. The above four principles, if applied, result in the law leaving out some group who ought to qualify. However, it is quite possible that the alleged principles are not actually the principles on which the classification is based.

In this context, let us begin by noting that laying down adequate determining principle for classification in a law lies at the doorstep of the Parliament.

It is submitted that here, the determining principle is not solely based on Partition, or harm. It is also not only about state religion or secular states, or about religious minorities. Determining principles cannot be laid in water-tight compartments, and it is not necessary that the entirety of one ground has to make a determining principle (for instance “all minorities”, or “all persecuted”). More than one ground can qualify the other grounds if the determining principle is specific (for instance, not all minorities but religious minorities, or not all persecuted but persecuted for being a religious minority).

While one set of determining principles takes in the Partition (Pakistan and Bangladesh), and the unique situation of Afghanistan vis-a-vis India, another possible set of principles is not Partition-related. India sees its responsibility as a regional leader in its neighbourhood with a thriving democracy and secular credentials to protect certain classes of foreigners under threat in their own countries. Among many forms of persecution, for now, India considers itself sufficiently prepared to be able to imbibe as citizens through a relaxed process of naturalization, those persecuted on the basis of religion. The next question is, who all and from where all?

The principle is members of communities (religion) not being the state religion of the respective nation. Essentially, it is a loose combination of Principle 2 and 4 described by the author. In other words, the broad sphere of ‘religious minority’ is qualified by its application only with respect to nations with state religions and on minorities being non-believers of the state religion. This is clearer with the altered text of bill, as being circulated in the media, by which the phrase “…persons belonging to minority communities, namely, Hindu, Sikh…” has been replaced with “persons belonging to Hindu, Sikh…”. [Editor’s Note: this is now the text of the Act.]

Therefore, it can no more be argued that the genus was ‘minority community’, and that only six of them cannot be protected (i.e., under-inclusion). The principle is shortened from ‘minority community’ to a principle which is qualified by two other components – applicable to states with a state religion, and applicable for religions not being the state religion. In other words, the principle is narrower than presented. Hence non-inclusion of some is not because of under-inclusion, but because they are not in conformity with the principle for classification. (such as Ismailis or Shias, being another sect of Islam and not a separate religion than Islam), or Myanmar, not included for not having a state religion.

Pakistan, Afghanistan and Bangladesh have a state religion, i.e., Islam. The Sri Lankan Constitution gives Buddhism the foremost place and the Myanmarese Constitution only recognizes the special position of Buddhism as the faith practiced by majority. In any case, if it is still considered that Sri Lanka has a state religion, courts may also take cognizance of data, if provided by the Union of India, of the alleged dwindling rate of the minority population in Pakistan, Afghanistan (less than 1% presently) and Bangladesh (from 23% at independence to 9% presently) of the communities sought to be protected vis-à-vis Sri Lanka (28 % in 1953 to 20% presently) to gather the mischief that the amendment seeks to arrest.

SUMMARY

The classification under Article 14 does not have inherent barriers of impermissibility at the threshold level, and nor does it have to conform to Article 15 when invoked with respect to non-citizens. In this case, the only test needs to be satisfied is the intelligible differentia-rational nexus-non-arbitrariness test of Article 14. The principle underlying the classification is not merely minority or religious minority, but of belonging to group other than the state religion of Pakistan, Bangladesh and Afghanistan (i.e. states with a constitutionally prescribed state religion). The classification with respect to states with state religions, for the benefit of persons not following the state religion, bears a rational nexus with the object of the amendment in protecting such persons facing threat of persecution for reason of non-conformity with their state religion and being eligible for relaxed criteria of immigration and naturalisation in India, and in furtherance of India’s responsibility as the leader in its nation with strong democratic values and emphasis on dignity of life to support victims of religious persecution in theocratic states. The classification, having semblance to a category of vulnerability recognized in international convention and supported empirically (possibly) is therefore not arbitrary.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

Tags

Citizenship, Equality, freedom of religion, non-discrimination

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]

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The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
4. Principle 4: The classification might be limited to singling out persecuted religious minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

ICLP Round Table: The Equality Bill 2019 – A Response

Tags

Equality, equality bill, non-discrimination

(In this concluding post in the ICLP Round Table on CLPR’s Draft Equality Bill of 2019, Jayna Kothari responds to the previous posts. Read the discussion here, here, here, and here.)

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The Equality Bill 2019 is in its early stages of the draft and this conversation with Gautam Bhatia, Sandra Fredman and Malavika Prasad is extremely useful and constructive. These comments raise several important concerns and would be helpful in the improvement of the Bill.

Before responding to the some of the comments to the Bill, I would like to give an overview the background of the Bill. The Bill was conceptualized to take forward the equality guarantees that recent Supreme Court decisions protected, such as the right to recognition of sexual orientation and gender identity. It was also conceptualized because the non-discrimination legislations that we currently have in India are not adequate and do not provide enough remedial measures to address discrimination.

Equality bills have been drafted in the past, especially the effort done by Tarunabh Khaitan in drafting the Anti-Discrimination and Equality Bill 2017. The Equality Bill has also examined in great detail the UK Equality Act 2010 and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 of South Africa and has tried to learn and improve on these legislations.

Two of the most difficult tasks were to draft the sections on protected characteristics and how to define ‘discrimination’. In addition to these tasks there have been substantive responses to concerns on contract and informal workers being left out of the sections on discrimination in employment. I will try and address these concerns below:

Protected characteristics: One of the most challenging concerns has been to decide which protected characteristics to include in the Bill and which to not include. The inclusion of ‘socio-economic status’ was a particularly complex characteristic to include and Danieli Evans Peterman’s article on the need for protection on the basis of socio-economic status in discrimination statutes is particularly instructive. Socio-economic status has been defined in the Bill as a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications. Therefore, the definition would imply that it would be only those who are disadvantaged by socio-economic status, and would not be available as a ground for those of a higher socio-economic status to raise the claim of discrimination. However, Sandra Fredman’s suggestion of using the term “socio-economic disadvantage” instead might work better and would make it clear that it is only meant for these who are disadvantaged by socio-economic status. Such a similar concern had been raised in the consultations that CLPR has had on the Bill with stakeholders and this has been raised not only in the context of the protected characteristic of ‘socio-economic status’ but also interestingly in the case of caste and the concern that only persons disadvantaged by a lower caste should be able to use caste as a ground for discrimination. The protected characteristic should not be available to persons of a higher caste to claim discrimination. Hence these concerns would need to be kept in mind while defining all protected characteristics to some extent.

Definition of discrimination:  “Discrimination” has been defined in the Bill to mean any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage, denies reasonable accommodation, promotes negative stereotypes, withholds benefits, opportunities and advantages from any person on one or more protected characteristics. Further, in Chapter II on prohibited conduct, discrimination has been expanded to include not only direct and indirect discrimination, which has been included in previous equality law drafts, but also to include structural discrimination, hate speech, segregation and boycott, harassment and victimization and lynching. Our attempt was to build on Sandra Fredman’s definition of substantive or transformative equality and its four dimensional framework, to include many more facets. Disability jurisprudence shows us how denial of reasonable accommodation amounts to discrimination. Caste related experiences of discrimination manifest in segregation, exclusion, boycott and lynching and gender based forms of discrimination often manifest in harassment and victimization and all of these forms often results in structural discrimination at a larger level. The Bill has attempted to include all these experiences to strengthen the understanding and definition of discrimination. The inclusion of hate speech as a form of discrimination is particularly challenging and we are still grappling with an appropriate definition which does not curtail the freedom of speech and expression.

Employment and Workplace Discrimination: The comments from both Sandra Fredman and Malavika on the inclusion of informal workers are extremely useful and the Bill needs to address this concern.  The definition of “employer” in the Bill was meant to be wide enough to include not only employers in the formal sector but also those in charge of informal employment or unorganized work sector such as domestic work. The suggestion to specifically include contract workers and employers who engage contract or temporary workers could be made more clear and specific. It is also true the definitions in the Bill might not include self-employed workers such as Uber drivers or other such persons engaged in app based employment and who are discriminated against by clients or customers. The Bill needs to provide for such inclusion within its employment related guarantees. The challenge of including people engaged in other forms of livelihood such as hawkers, vendors, artisans etc. can also be addressed perhaps by expanding the definitions of places of public accommodation and to include discrimination faced by vendors from customers or the State authorities.

The comments received on the Equality Bill have been extremely important and we hope that these conversations continue. We welcome inputs and feedback on the Equality Bill draft and invite more readers to engage with the text. All of this will help in not only improving the draft but also in pushing for the Bill to become law soon.

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(The writer is a senior advocate.)

ICLP Round Table – The Equality Bill 2019: On the Equality Courts

Tags

discrimination, Equality, equality bill, equality courts

(This is the fourth piece in our ICLP Round Table on CLPR’s Draft Equality Bill. This post is by Anmol Jain.)

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This article concerns Part V of the Draft CLPR’s Equality Bill, 2019, which deals with the constitution of district-level equality courts to enforce the non-discrimination rights envisaged under the Bill. I attempt to lay down a background for appreciating the constitution of equality courts and their desired manner of functioning.  

The Idea of Equality Courts and the Need to Establish Them

The Constitution guarantees several civil, political and socio-economic rights including the right to equality and the right against discrimination. When violated, the Supreme Court and the jurisdictional High Court have been empowered to take necessary actions. A question then arises that why we need another judicial forum in the form of equality courts. The answer is simple: ‘the constitutional courts are not approachable, affordable and accessible for a large part of the Indian masses.’ A geographically vast country like India has only one Supreme Court with no regional benches, and many States and Union Territories sharing High Courts (especially in the Northeast) among themselves. For instance, if one’s rights guaranteed under the Constitution are violated in the Andaman and Nicobar Islands, the remedy lies more than 1000 km away in Kolkata. The hefty fees of the lawyers in the High courts seems realistically unaffordable for a (severely) economically unequal citizenry that remains illiterate with the functioning of the courts.

For a true constitutional win, the State must take the courts closer to the public. South Africa, a country with a similar history as ours but in the form of Apartheid, aimed to realize this goal by constituting equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. India is already on the path of creating such courts and one of its first kind can be perceived under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which creates Special Courts and Exclusive Special Courts to address the acts of discrimination having their locus in the caste of the victim. Similarly, the Transgender Persons (Protection of Rights) Bill, 2019, if passed, would be another statute providing sanctions under a positive law for the violation of the right to non-discrimination. This is a partial success as Article 15 prohibits discrimination on the grounds of religion, race and place of birth, apart from caste and sex.    

Studied in this background, one cannot but appreciate the relevance of Chapter V of the CLPR’s Equality Bill, 2019, which provides for the constitution of equality courts. Equality courts, functioning at the District level, shall bring constitutional adjudication closer to the public and fulfil the dreams of attaining true equality. They might act as the necessary catalyst towards the fulfilment of our constitutional promises.

One of the most important reasons for their success could be the rich constitutional common law that the Supreme Court and the High courts have created since 1950, which shall help the equality courts in uniform functioning. The constitutional courts could be seen as driving the Constitution towards transformational successes by valuing individual rights with a proper balancing with the collective security of the society. The richness of rights’ interpretation in India can be best captured by a recent decision of the Madras High Court, wherein the court held a marriage between a man and a trans-woman as valid. Moreover, the manner in which the DPSPs have now been perceived as the means for achieving the goals of Part III unlike the initial years when they were considered as secondary to Part III shall guide the Equality courts in the proper enforcement of the constitutional promises.

The Desired Functioning of the Equality Courts

The arguments in this part are made after a study of the equality courts functioning in South Africa, which can provide us with the necessary guidance about how things can go wrong or remain bad if not properly implemented.

Proponents of Legal Realism argue that ‘judges determine the outcome of a lawsuit before deciding whether the conclusion is, in fact, based on an established legal principle.’ Jerome Frank has noted that the decision reached by a judge is not based on the systematic understanding of the facts applied to the law, but on ‘judicial hunch’ or the ‘intuitive sense of what is right or wrong in the particular case.’ These intuitive results are largely determined through the socio-economic background, political inclinations, cultural understanding, personal experiences and individual characteristics of the judge. It has been argued that “since the ‘rules’ allow the judge considerable free play, he or she can in fact decide the case in a variety of ways, and the way that is in fact adopted will be more of a function of such factors as the judge’s psychological temperament, social class and values than of anything written down and called rules.”

There have been instances of judges forwarding their personal notions in the equality courts of South Africa. In one instance, a judge belonging to the dominant class imposed a restriction on the rights of the blacks to sing their struggle song by employing questionable reasoning. Even in India, we have seen that in the late 1990s, the Supreme Court delivered a number of judgments expounding on the philosophy of Hindutva, while allowing political speeches and pamphlets grossly asking for votes based on religious lines. More recently, we have seen Justice Sen of the Meghalaya High Court and Justice Chitambaresh of the Kerala High Court, speaking through religiously coloured words. This depicts how discriminatory tendencies remains embedded in the judiciary, which dangerously ‘continues to favour the socially and economically dominant members of the society.’  

For successful functioning of the equality courts, it is necessary to secure the judges from being dominated by their discriminatory ideologies. They are one of the most important elements responsible for the success or failure of a justice system as they speak for the courts and their actions determine the level of confidence public shares for the entire institution. If we want people to approach the equality courts, we must first ensure that the Judges are well trained and properly sensitized to handle the matters of discrimination. Therefore, Clause 4 of Section 24 of the Equality Bill, which states that ‘Every judge presiding over a designated Equality Court shall receive a prior training on this Act, in the manner as may be prescribed under the Rules’, becomes extremely important and practically significant.

Apart from judicial sensitization, the Government would also need to ensure that the public is adequately aware of the equality courts and that they are accessible in terms of finances and judicial process. It is disheartening to see that the Government has decreased the Budget for the law and justice and has only earmarked one crore rupees for the advancement of transgender persons under the Transgender Persons Bill. Unless proper awareness campaigns are organized to educate people about their rights under the Bill and the judicial process required to be followed for their enforcement, the equality courts might end-up being just another theoretical attraction.

The courts could be based on the South African model, which has tried best to remove the barriers faced by public while approaching a court. It has made the courts to function in an informal manner, with case filing being nearly inexpensive for litigants and has provisioned for equality clerks as a guide for the litigation. We must ensure that the courts ‘operate with innovative and creative procedural and evidentiary rules that aim to maximise access to justice for victims of discrimination.’

Another important task for the Government shall be to ensure that the poor and underprivileged people have regular access to the courts. It has been noted by the South African Human Rights Commission that: “Equality Courts are not being utilized by the poor and vulnerable.” Majority of the complaints are filed by the dominant class people, who hire best lawyers ‘to overpower the undereducated complainants.’ Unless these deficits are overcome in our system, we might fail to achieve the noble aims of the Equality Bill.

Concluding Remarks

The demand for a comprehensive anti-discrimination law is long pending and multiple attempts have been in the past. The reason is simple: it enlists the equality aspirations and non-discrimination responsibilities of the people in a specific and explicit manner, unlike the Constitution that has provided us with the overarching principles. The central stage is always afforded to the implementing body, which ensures that the statutory promises and objectives are fulfilled in their best essence. The constitution of equality courts shall fulfil such purpose and shall help us in achieving the constitutional promise in a more effective manner through forums closer to the public. Once properly sensitized, the equality courts shall bring with themselves the people-friendly and innovative tools for addressing individual actions of discrimination and might possess the possibilities of meeting the transformational goal of the Constitution.  

Quoting from Narnia Bohler-Muller’s work: “the creation of the Equality Courts in South Africa presents us with numerous possibilities. They do not depict in and of themselves the end of oppression but they do provide us with the hope for the future.” Hoping the same for our mature democracy, we must now endeavour to shift the constitutional adjudication at the ground level.

ICLP Round Table: The Equality Bill 2019 – Comparative Perspectives

Tags

comparative constitutional law, Equality

(This is a guest essay, authored by Professor Sandra Fredman, who is Rhodes Professor of Law at the University of Oxford. It is the third essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first two essays are available here and here).

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India is unusual in that the provisions guaranteeing equality in the Constitution have not yet been supplemented by comprehensive anti-discrimination legislation comparable to that in other jurisdictions, such as the US, South Africa or the UK. Anti-discrimination legislation plays an important role in giving specific content to constitutional guarantees. It can also bind individuals and corporations, thus extending the reach of the right to equality beyond the State into key sites of discrimination, such as employment, housing, education, healthcare and goods and services available to the public.  The proposed Equality Bill drafted by Jayna Kothari and her colleagues at the Centre for Law and Policy Research is thus very much to be welcomed and she and her team deserve to be congratulated on the quality and reach of the proposal. This post takes a comparative perspective on the Bill, while of course being sensitive to the very different context in which the new legislation will function.

There are many aspects of the Bill that demonstrate positive advances on relevant comparators, such as the UK Equality Act 2010 (EA) and EU legislation. This is particularly so for the definition of direct discrimination. Direct discrimination has traditionally been defined as occurring when a person is treated less favourably than another due to a protected characteristic. The need for a similarly situated comparator, however, has raised complex issues both in principle, because it requires conformity with a dominant norm as a gateway to equal treatment, and in practice, where the choice of comparator can be contested. This has most saliently occurred in relation to pregnancy, with the sad spectacle of tribunals and courts in earlier decades refusing to accord pregnant women the same treatment as men because there is no appropriate male comparator. The EA addressed this problem by replacing the requirement for a comparator with the simple need for detrimental treatment. But this only applies in relation to pregnancy (and disability in limited circumstances), The Indian Bill takes a step further and gives both possibilities in the alternative, available for all protected characteristics, not just pregnancy.

The Bill is also important in that it aims to address structural discrimination in various forms. While the EA addresses such discrimination solely through indirect discrimination, which focuses on the effects of apparently neutral practices, provisions or criteria, the Bill also includes a provision expressly defining ‘systemic or structural discrimination,’ defined as hidden or overt patterns of institutional behaviour, cultural traditions and social norms that discrimination against individuals with protected characteristics. The Bill’s definition of indirect discrimination, is however, interesting in that it does not include the usual justification defence for respondents, permitting the latter to demonstrate that the provision is proportionate to a legitimate aim (such as a requirement for a relevant qualification which might be necessary for a job even though it excludes a disproportionate number of people with a protected characteristic). 

The Bill is impressive too in the wide range of characteristics which it classifies as protected against discrimination. Although many of the listed characteristic can be found in international or regional sources, the Bill contains several important additions, including linguistic identity, migration, refugee status, occupation and food preference. The Bill also transcends the straight-jacket of the Constitutional equality provisions, which only list a set number of protected characteristics. Instead, its list is non-exhaustive, including a provision by which analogous grounds can be included if they fit the principles in the Bill. In addition, the Bill makes express provision for addressing intersectional discrimination. Notably, the Bill includes socio-economic status as a protected characteristic. While this is a welcome move, this formulation runs the risk of protecting the stronger as well as the weaker sections of society. This might open the way to claims by advantaged persons that provisions such as higher taxes for wealthier persons might be challenged as discriminatory on grounds of socio-economic status. The drafters might instead want to use an expressly asymmetric term such as socio-economic disadvantage.

One aspect of the  Bill which might also need further attention concerns the scope of the protection for workers. Given that over 80% of employed persons in India earn their living in the informal sector in India,  dwarfing the formal sector in magnitude, a key initial question is the extent to which non-standard workers are protected. This is a highly challenging issue, and there are few modern positive precedents for its resolution. In particular, most labour law systems confine eligibility for employment protection to workers working under a contract of employment, excluding self-employed, non-standard workers. Discrimination law in the UK extends to some self-employed workers, provided they work under a contract to provide a personal service; but this too has opened up a large number of loopholes for those attempting to sidestep their obligations.

The Bill certainly takes important steps towards inclusion of non-standard workers, such as including employment agencies in the prohibition on discrimination, and mentioning domestic workers in the definition of employer. However, the way in which ‘employee’ is defined might still exclude some of the most vulnerable workers outside of the formal sector. ‘Employee’ is defined as any person ‘employed on wages in any establishment, factory, company or shop.’ An Uber driver who is discriminated against because he is Muslim, a woman agricultural worker  who is sexually harassed, or an own-account worker who is paid less because of race, caste or migration status, might find it difficult to bring themselves within this definition. One way forward is to provide separate protection for self-employed workers who are discriminated against by clients or customers, similar to the protection for consumers or users of public accommodations. Another is to replace the use of ‘wages’ with earnings, and give less emphasis to the workplace as the site of work.  Also of importance is to bring the provisions for equal pay for work of equal value in the Equal Remuneration Act into closer alliance with the Bill.

The Bill is also noteworthy in its inclusion of proactive duties, closely resembling the  ‘fourth generation’ equality duties found in the EA. Such duties are important in their recognition that individual complaints of discrimination will never be sufficient to address the structural causes of discrimination. Proactive duties on the part of the State are crucial in discerning and changing such systemic patterns, as well as taking the burden off individual complainants. The Public Sector Equality Duty in the Bill tracks closely onto its UK equivalent by requiring all appropriate authorities to ‘have due regard to the need to’ eliminate prohibited conduct under the Act, remove or minimize disadvantage, and encourage participation. It goes somewhat further than the EA in that due regard should also be had to taking steps to meet the need of persons with protected characteristics. However, given the extent to which the ‘due regard’ standard under the EA has become little more than a ‘tick-box’ procedure, the drafters might consider strengthening the requirement. For example, rather than requiring authorities to ‘have due regard’ to the need to eliminate prohibited conduct, the drafters might consider requiring authorities actually to eliminate such conduct, which is prohibited in any event. Similarly, rather than imposing a duty to have due regard to the need to take steps, they  might think of imposing a duty to actually take the steps.  Nor would this be pushing the boundaries too far, given that the previous clause requires the State to take measures to promote equality.

Even more welcome would be the inclusion of a duty to have regard to the need to reduce economic inequalities. A similar duty was inserted into section of the EA, which required public authorities, when exercising strategic functions, to have regard to the desirability of reducing socio-economic inequalities. Despite being a very mild obligation, this provision has never been brought into effect, despite remaining on the statute book, so that there is no experience of its workings. For the Indian Bill, it would not be too large a step to include such a duty, given the emphasis in the preamble on eradication of socio-economic inequalities, and the inclusion of socio-economic status in the list of protected grounds. Consideration might even be given to strengthening the obligation.

All in all, this is a very welcome intervention, and it is to be hoped that it will soon find its way onto the statute books.

ICLP Round Table: The Equality Bill, 2019 – On Recognition, Redistribution, and Self-Respect

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Equality, round-table

(This is a guest essay, authored by Malavika Prasad. It is the second essay in the ICLP Blog’s Round-Table on the Centre for Law and Policy Research’s Draft Equality Bill 2019. The first essay is available here.)

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The Draft Equality Bill creates two categories of protections. First, it stipulates that discrimination of various kinds shall be forbidden, in chapter III, and in sections 3, 16(a), 16(b) and 19 as will the acts of hate speech, harassment, segregation, boycott, lynching and victimization, in sections 5-9. These prohibitions envision equality as a floor, below which any treatment shall be prevented, prohibited and protected against. Second, it stipulates that equality shall be promoted by way of diversification, equality plans, codes of practice, reasonable accommodations, measures for the advancement of persons disadvantaged by any of the protected characteristics, etc. in sections 15, 18, 20, 21, 22, 4 read with 17, and so on. These protections envision equality as equal access or equal opportunity above the floor of non-discriminatory treatment. These measures are intended at leveling the playing field between persons disadvantaged by a protected characteristic and those privileged by them. 

The two categories of protections are broadly of the nature of ensuring “recognition” consonant with the aims of the Bill which are not only to prohibit, prevent, and protect against discrimination, but also aimed at promoting equality. Towards this end, the protected characteristics cover a range of historical and contemporary, structural axes of inequality from “caste, race, ethnicity, descent, sex, sexual orientation, gender identity, gender expression, tribe, nationality, disability, marital status, pregnancy, health (including HIV / AIDS status), political opinion and belief, linguistic identity, place of birth, age, migration, religion, refugee status, food preference”. The central underlying character of these “protected characteristics” is captured in section 2(jj)(ii) (which defines the kinds of protected characteristics that can be notified by an Equality Commission in future) as: “…where discrimination based on such characteristic or identity causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights.” 


In this list of protected characteristics also figures “socio-economic status”, ostensibly aimed at the “eradication of socio-economic inequalities”. “Socio-economic status” is defined in the Bill as “a social or economic condition or perceived condition of a person who is disadvantaged by poverty, low income, homelessness, or lack of or low-level educational qualifications.” In this post, I will try to understand this concern of the Bill.­ I argue that the protected characteristic of “socio-economic status” is fundamentally different from other protected characteristics in the Bill. If the Bill seeks to promote distributive equality, then it needs to do more than prohibit discrimination and promote equality in the ways described.

Distributive equality

The two categories of protections for “recognition” in the Bill – prohibiting discriminatory treatment below a floor, and mandating measures for equalizing opportunity above the floor – are best suited to secure and realise basic equal opportunities to persons facing caste, gender, disability or and similar structural inequality. However, we find that a person who is protected against discrimination and empowered with the equal access to opportunities to access schooling, work and housing, could still end up at a vastly unequal position compared with the socio-economically best off, despite comparable levels of effort and talent. How should an equality law account for this inequality of outcome?

Theories of distributive justice such as that of John Rawls are only comfortable with inequalities of outcome that result from varying given talents of different people who otherwise enjoyed equal liberties and opportunities. The pre-conditions for political and economic institutions are equal basic liberties (1) and fair equality of opportunity (2a). Under such conditions, since that the given talents of people vary, any resulting socio-economic inequality is justifiable by the “difference principle” (2b): the advantages of the best off must work to the benefit of the worst off.

However, in Indian society (and indeed in any real society) given the structural axes of inequality such as caste (/race/ethnicity), gender, disability, both of Rawls’ preconditions are seldom if ever met. When equal basic liberties and equality of opportunity are a mirage, an equality law must set about first guaranteeing basic equal liberties (1) and equality of opportunity (2a) on structural axes of inequality, before actualizing the difference principle (2b) for distributive inequality. So long as we have not perfected the conditions of equal liberties and equal opportunities, the difference principle cannot justify inequality of outcomes, as it results from unequal access to opportunities and unequal basic liberties.  

If this is the kind of outcome-inequality the Bill intends to eradicate through the protected characteristic of “socioeconomic status” due to “low income”, “homelessness”, “poverty”, then two conclusions follow. First, inequality on solely economic grounds such as “low income” cannot be protected against. If the setback faced by a person is solely economic in nature, then the two categories of protection based in “recognition” are not capable of eradicating the economic disadvantage. “Recognition” based protections are more suited to eradicate inequalities in which the “social” component compounds the economic. In similar vein, even poverty and homelessness cannot be read as merely “economic” setbacks. If inequality due to solely economic conditions such as low income are sought to be remedied by this Bill, further clarity is needed on how it will tackle class-barriers to equal access and opportunity, as Gautam Bhatia points out in his post here.

Second, for eradicating socioeconomic inequality, the two categories of protections in the Bill are not enough. In addition to protections in the realm of “recognition”, the Bill must also stipulate protections of “redistribution”, these protections being interdependent on each other for successfully realizing equality (Nancy Fraser). Such redistribution cannot be a mere “floor of protection against the worst outcomes” with the aim of realizing a basic “sufficient” minimum, but ought also to envision a ceiling on the kind of material inequality that can possibly exist. (Samuel Moyn, Not Enough (2018)). B R Ambedkar’s Draft Articles on States and Minorities, 1945 are instructive on what such reinforcing protections of recognition and redistribution might look like, while also envisioning a ceiling on inequality.

Such measures might fall within the duty of the State to promote equality under Section 15(1), the duty to have “due regard to the need to take steps to meet the needs of persons with protected characteristics” under Section 16(b), or the duty to make reasonable accommodation under Section 22. However, these provisions do not capture the distinct nature of redistributive measures necessary for ensuring redistribution alongside recognition, in the absence of which courts – lacking ‘the power of sword and purse’ – will be ill-equipped to order such remedies.

Self-respect

Even remedying distributive inequality and structural inequality as mutually reinforcing forces is not enough, as Gopal Guru writes in Liberal Democracy in India and the Dalit Critique in assessing equality protections from the perspective of Dalits. In his words, “a more comprehensive assessment…. [needs] discussion of the language of self-esteem and self-respect.” Self-esteem is understood in terms of individual achievement and social ranking in institutions, while self-respect is understood as affirmative attitude one holds of oneself. Guru argues that the measures aimed at promoting equality in the Indian democratic framework enable gaining self-esteem but at the cost of one’s self-respect.

Drawing from Guru’s analysis, I worry that the categories of “recognition” based protections do not create opportunities for persons who are socio-economically disadvantaged to realise and enhance self-respect. Consider the diversification mandate in section 18 of the Bill. While it creates and sustains the background conditions for achieving self-esteem, such achievement comes at the cost of self-respect, as entry into and existence in such institutions under the diversification mandate, will be on the terms of the patrons – likely from dominant groups – who run the organization or institution in question. Guru argues that the need of Dalits to be considered on the terms of patrons is a constraint that permits a struggle only for relative worth, and not of equal worth. Moreover, it appears that section 18’s requirement would stand fulfilled by merely populating institutions with diverse identities, even if the institution is ‘ethically impoverished’ by erasure of the inclusive and egalitarian ideals behind diversification. In Guru’s words “… the idea of democracy or social justice or dignity, which forms the basis of modern public institutions, is reduced to Dalit identity…Thus ideas are compressed into identity.” Such institutions that are seen as embodying merely identities but not the egalitarian and inclusive ideas of diversity cease to hold public respect, Guru cautions. A similar outcome could result from diversification efforts even for persons from other protected groups. This results in further loss of self-respect.

The preambl­e of the Bill mentions the need to affirm human dignity in ensuring equality. While prohibitions on insulation and stereotyping of workers based on protected characteristics have been made in Section 10(1)(b) and (c) (which affirm human dignity), the Bill does not create affirmative duties towards enhancing dignity and self-respect of persons disadvantaged by a protected characteristic. Towards bridging this gap, granular duties tailor-made to each specific site of inequality, to undertake diversification or measures for the advancement of persons disadvantaged by protected characteristics in a self-respect enhancing manner ought to be made. Further, the Bill ought to stipulate the procedure by which these obligations will be discharged, which itself ought to be affirming of the dignity and self-respect of persons in question.  For instance, duties and procedure must be laid down to honor the right of all persons disadvantaged by a protected characteristic, to meaningfully participate and be consulted on their evolving needs and requirements, accounting for their likely disparate bargaining power, in the undertaking of reasonable accommodation measures, with a possible guarantee of a minimum core support.

While awaiting a distributively just utopia…

While we await the realization of a utopian distributive equality, it is imperative to reckon with the sites of work that individuals (particularly those disadvantaged by socio-economic status) are likely to be reliant on, that are not protected by the Bill. The Bill protects individuals in the site of “employment”, in which “employer” is defined in section 2(o), across a spectrum covering (i) the head of an “department, organization, undertaking, establishment, 
enterprise, institution, office, branch or unit of the appropriate Government”, or (ii) in workplaces not covered in (i) the entity exercising any degree of supervision or control, or (iii) in workplaces not covered in (i) and (ii), the person discharging contractual obligations with respect to his or her employees; and (iv) the person or household benefiting from the work of a domestic worker. While this definition includes some kinds of atypical workers such those hired on contract terms, outsourced employees, and workers in the unorganized sector, it is unclear how this definition will apply to workers in the gig economy, as well as workers hired on casual, wage labour. Furthermore, atypical sites of livelihood such as those of self-employed hawkers, vendors, artisans stand excluded from the “work” based protections of the Bill, although they stand to face discrimination at the hands of the “everyday state” (a term borrowed from Anindita Mukherjee, Legal Right to Housing (2019) Cambridge University Press) such as a zoning or municipal authority. The avenues to realize socioeconomic wellbeing are increasingly outside of the typical sites of work and must also be included within the Bill as sites of discrimination, where equality must be promoted.

ICLP Round Table: The Equality Bill, 2019

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Equality

In July 2019, the Centre for Law and Policy Research [“CLPR”] published The Equality Bill, 2019 [“Equality Bill”]. The Equality Bill is the latest in a series of recent efforts by scholars, members of civil society, and MPs to frame civil rights legislation for India. It also comes at an important time: the Supreme Court’s judgments in September 2018, decriminalising same-sex relations, decriminalising adultery, and striking down the ban upon women’s entry into the Sabarimala temple, saw notable advances in Indian equality and anti-discrimination jurisprudence after a long and stagnant period. It is therefore important to take stock and assess the possibilities for the future of equality and non-discrimination law in India. To this end, the Indian Constitutional Law and Philosophy Blog will host a round-table on some of the salient features of CLPR’s Equality Bill.

In this opening post, I will summarise some of the key features of the Bill, and provide a few brief comments. The scope of the Bill can be best understood by asking the following questions: (1) what actions does it cover (how does it operate)? (2) what spaces, institutions or relationships does it cover (or, in other words, where does it operate)? (3) whom does it cover (or protect)? (4) how does it seek to actualise that protection.

On the first issue, the Equality Bill prohibits discrimination, boycott, harassment, victimisation, hate speech, and lynching. Within “discrimination”, the Bill defines – and prohibits – both direct and indirect discrimination, intersectional discrimination, and structural discrimination (inter alia). On this, three brief comments. First, despite recent advances, intersectional and structural discrimination are concepts that are still largely unexplored within Indian constitutional jurisprudence. In implementing the provisions of the Bill, therefore, State authorities as well as Courts will have almost no jurisprudential guidance to draw upon. For this reason, the Bill itself will probably need to contain substantive interpretive guidance, in the form of multiple illustrations and examples (for example, an illustration of structural discrimination might be skewed caste representation in newsrooms, to take a topic recently under debate). Secondly, it is very interesting to note that the prohibition of hate speech finds a place in this chapter. The understanding of hate speech as an equality issue – i.e., as undermining principles of equal concern and respect for all members of society – as opposed to an issue about sentiments, is crucial. It follows the South African approach under its Equality Act, the jurisprudence of the Canadian Supreme Court, and also, the Indian Supreme Court’s observations in Pravasi Bhalai Sangathan, which have not yet been followed up. And thirdly, the anti-boycott provision is of crucial importance, as it recognises one of our most pernicious social realities. Anti-boycott provisions have a long history going back (at least) to 1922 (and were most recently enacted into law in Maharashtra’s Social Boycotts Act. This is also a place where interpretive guidance will be crucial (drawing from, perhaps, the detailed anti-boycott provisions referred to above), as the social boycott can take many different forms, some of which are not immediately visible as boycotts.

On the second issue, certain provisions of the Bill are made applicable to employment, education, public buildings and public places, healthcare, and housing and land. One question that arises on reading this section is how the housing guarantees will be reconciled with the judgment of the Supreme Court in Zoroastrian Co-Operative, which – effectively – upheld the rights of cooperative societies to enforce restrictive covenants (it is an open question whether the Equality Bill legislatively overturns Zoroastrian Co-Operative, by removing its foundations). A second question arises from the fact that one of the “protected characteristics” under the Bill is that of “socio-economic status.” Now, the Bill also stipulates that educational institutions may not discriminate on questions of admission, based on protected characteristics (there is an analogous provision with respect to healthcare). Can a student who is unable to take admission in a school because of high fees claim discrimination on the basis of “socio-economic status”? Questions of compatibility with the Right to Education Act aside, it is unlikely that Courts will read the Equality Bill as having such a far-reaching effect upon economic structure. Some clarity may therefore be needed on the question of whether, how, and to what extent the Equality Bill aims to address disparities in access to important goods that are determined by class barriers. Lastly, it is particularly important to note that via the definition clause, the employment relationship includes domestic workers working in a household. By bringing households and domestic workers into the ambit of the Bill, the traditional public/private divide and the exclusion of constitutional norms from the space of the household is challenged; and there is, correspondingly, the recognition of domestic labour qua labour, and domestic workers as rights-bearers.

On the third issue, a significant part of the work is done by the term “protected characteristics”, defined under Section 2(jj) of the Bill. The list of characteristics is comprehensive, but some further thought might need to be paid about how these definitions will interact with other parts of the Bill. For example, Section 2(jj) correctly states that “political opinion and belief” is a protected characteristic. However, political boycott (as opposed to social or cultural boycott) has long been an integral part of civil rights movements, including in India. Naturally, the Bill would not intend to prohibit the kind of boycott movements that India spearheaded against apartheid South Africa, for example.

Lastly, on the question of implementation, the Bill envisages an Equality Commission and Equality Courts, working in tandem. This is, by now, a familiar legislative remedy, whose positives and negatives are well-known.

In conclusion, a final, overall comment: the extension of equality and non-discrimination norms into the traditional “private sphere” brings with it a host of complicated issues, including issues around balancing rights. Section 3 of the Bill, for examples, bars discrimination by “any person” on the basis of protected characteristics; this, of course, raises the issue of the clash between freedom of belief, expression and association (of the discriminator) versus the rights of individuals not to be discriminated against. Obviously, the prohibition of non-discrimination cannot apply to every individual act (and the Bill itself recognises this by placing limits upon the application of non-discrimination norms in specific contexts such as that of the workplace) – that would both be a violation of personal autonomy, as well as practically unimplementable. It is an open question whether the Bill itself should provide guidance to the Courts on the principles that should be applied to reconcile competing rights; or, in other words, should the Bill itself express an overall philosophy about the limits of “private autonomy” and the private sphere when it comes to equality and non-discrimination? Indeed, the Bill’s focus on “systemic or structural discrimination” gives us one indication: structural discrimination occurs when seemingly private acts have lost their “private” character by virtue of becoming constituent parts of a “pattern of institutional behaviour” (for example, caste discrimination). If, therefore, we read the Equality Bill through this “institutional lens”, it may provide us with a valuable framework within which to reconcile the issues that will inevitably arise once we get to the stage of implementation.

The Karnataka High Court’s Troubling Decision on the Right to Education Act

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educational institutions, Equality, Right to Education

On 31 May, a division bench of the Karnataka High Court handed down its judgment in RTE Students and Parents’ Association v State of Karnataka, upholding the constitutional validity of Rule 4 of the Karnataka Right of Children to Free and Compulsory Education Rules of 2012. The background is this: Section 12(1)(c) of the Right to Education Act requires private schools to admit – to the extent of 25% of the strength of their Class I batches – students belonging to “the weaker sections and disadvantaged groups in the neighbourhood.” The money spent on these children would be reimbursed to the private schools by the government. Rule 12 of the Karnataka Rules – secondary legislation under the RTE Act – stated that “provided that no unaided school falling under such clause (iv) of clause (n) of Section 2 [i.e., of the RTE Act] shall be identified for the purpose of admission of disadvantaged group or weaker section, where government school and aided schools are available within the neighbourhood.” The effect of this rule, therefore, was that the obligation under S. 12(1)(c) would not apply to private schools in cases where there existed government or aided schools in the neighbourhood. Or, in other words, children from disadvantaged sections would no longer be able to seek admission in private schools under the aegis of s. 12(1)(c) if there existed a government or aided school in their neighbourhood.

The constitutionality of Rule 4 – as flagged above – was challenge, and the High Court rejected the challenge. The case of the petitioners was primarily based on the contention that the vast quality gap between government and private schools essentially consigned socially and economically disadvantaged students to a second-class education, and deprived them of an equal opportunity to exercise their right to education under Article 21A of the Constitution. On the other hand, the State argued that the effect of the RTE had been a gradual closing down of state schools and a proliferation of private schools, apart from a heavy burden on the public exchequer spent on reimbursing private schools. As far as statutory interpretation went, the State argued that under Section 6 of the Right to Education Act, the State was under an obligation to establish – within three years – public schools in every neighbourhood. It was therefore argued that on a combined reading of Sections 6 and 12(1)(c), the 25% obligation on private schools was a “transitory” one, until such time that government schools were established in the neighbourhood. Consequently, Rule 4 – which effectively provided that when a government school was established, the requirements of S. 12(1)(c) no longer applied – was valid.

Accepting the argument, the High Court held that:

The learned Advocate General is right in his submission that the State Government or the local authorities are under the obligation to identify schools defined under Section 2(n)(iii) & (iv) only if there are no schools in the neighbourhood. The case of the petitioners is that notwithstanding the existence of Government or Government aided schools in the neighbourhood, unaided schools must also be identified to ensure that parent and the child get admission in schools of their choice. If petitioner’s contention is to be accepted, the State Government will be compelled to reimburse astronomical figures. The argument on behalf of the petitioners that children entitled for seat under the RTE Act may choose an unaided school in the neighbourhood though there exist Government and aided schools, is fallacious. (paragraph 21)

The Court then went on to explain the need for judicial restraint in the review of administrative action (!), and noted that because the Rule was neither arbitrary nor unreasonable, it could not be struck down under judicial review.

There are, however, a number of flaws with the analysis in paragraph 21. The first and most glaring is that it appears to ignore the plain wording of the statute. Section 12(1)(c) is clear that the private school shall admit 25% of its Class I batch strength from the disadvantaged sections. The obligation upon the private schools, in other words, is mandatory. What the High Court did, however, was to convert this mandatory obligation into a conditional obligation, based upon its reading of Section 6 of the RTE. Section 6, however, is a different provision entirely: it is addressed to the role of the government in carrying out its obligations under the Act, and therefore, requires the government to establish schools within three years. Nowhere in Section 6 – or anywhere else in the Act – is it indicated that the Section 12(1)(c) obligation on private schools is subject to the obligation upon the government under Section 6 remaining unfulfilled. Something as important as that, one would think, would be spelt out in the Act itself, and not merely inferred. The bridge between Sections 6 and 12, therefore, that the Court built, seems to be made entirely out of air.

This is evident from the fact that the Court seemed to view the issue only to be involving the right of children to be admitted into private schools of their choice. Once the argument was framed this way, it was able to make the common-sensical argument that the Constitution only guaranteed the right to education, and not the right to education in a private school of one’s choice. This, however, attacks a straw-man. The purpose of Section 12(1)(c) goes beyond granting a right of admission to private schools. To get a sense of the purpose, consider the Statement of Objects and Reasons appended to the RTE Bill of 2008, which is a permissible external aid to interpretation:

The proposed legislation is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.

Not only does this make clear that Sections 6 and 12 of the RTE Act are independent provisions operating in independent spheres, but it also provides the rationale: inclusion, or integration. The rationale is further elaborated – in absolutely unambiguous terms – by the Ministry of Human Resource Development’s clarificatory memorandum on the provisions of the RTE:

The idea that schooling should act as a means of social cohesion and inclusion is not new; it has been oft repeated. Inequitable and disparate schooling reinforces existing social and economic hierarchies, and promotes in the educated sections of society an indifference towards the plight of the poor. The currently used term ‘inclusive’ education implies, as did earlier terms like ‘common’ and ‘neighbourhood’ schools, that children from different backgrounds and with varying interests and ability will achieve their highest potential if they study in a shared classroom environment. The idea of inclusive schooling is also consistent with Constitutional values and ideals, especially with the ideals of fraternity, social justice and equality of opportunity. For children of socio economically weaker backgrounds to feel at home in private schools, it is necessary that they form a substantial proportion or critical mass in the class they join. The relevant universe in which the proportion needs to be considered is the class/section. It is for this reason that the RTE Act provides for admission of 25% children from disadvantaged groups and weaker sections in class I only. This implies that these children cannot be pooled together in a separate section or afternoon shift. Any arrangement which segregates, or treats these children in a differentiated manner vis-à-vis the fee-paying children will be counter- productive.

Think of it as the anti-segregation rationale of Brown v Board of Education, only applied to class instead of race. The purpose of Section 12 was – and is – to combat, in whatever minimal way, the two-tier system of schooling that exists in India, where class enforces what is effectively a highly segregated structure, and where the the rich and the poor are “sorted” right from the moment primary schooling begins. Now, of course, a lot of people may have objections to the wisdom or the efficacy of the provision, but that is not the question here. The question here is a question of interpretation. And from that perspective, once the inclusive or integrationist purpose is clear, it also becomes clear that Section 12 – far from being a “transitory” provision, something like a poor cousin of Section 6 – is the heart and soul of the RTE itself. And that being the case, there is little doubt that Rule 4 – which effectively negates Section 12 – is ultra vires the RTE, apart from being unconstitutional.

How did this meaning of Section 12 – hiding away in plain sight – escape the Court? It is hard to say, but the Court’s repeated reference to the financial burden on the exchequer and to how the number of state schools was declining, gives us a hint of the factors that may have influenced the decision-making process. Neither of these factors, however, is relevant. The question of reimbursement is a pure question of policy, which – on the Court’s own insistence – it was in no position to get into. And whether the effect of the RTE was the decline of state schools is, as well, a deeply complex issue where questions of causation would be particularly difficult, and – again – unsuitable for judicial adjudication. And in any event, the clear meaning of Section 12 – and the constitutional goals that it is designed to fulfil – should have been enough for the Court.

The Karnataka High Court’s judgment, however, now makes it very easy for state governments to accomplish an end run around the heart of the RTE, and through copycat rules, basically once again ensure the insulation of private schools from the obligations of inclusion and integration, thus restoring economic segregation in the field of education. In this light, one hopes that the judgment will be set aside on appeal to the Supreme Court.