The Supreme Court’s Marriage Equality Judgment – I: On the Right to Marry and a Case of Abstention through Delegitimisation [Guest Post]

[This is a guest post by Kartik Kalra.]

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This week, the Supreme Court delivered its judgement in Supriyo @ Supriya Chakraborty v. Union of India, accepting the existence of the manifold disadvantages faced by non-heterosexual couples, while simultaneously refusing to express such disadvantages in the language of constitutional transgressions, or to grant the petitioners any relief other than affirming the Union’s vague promise of a “High-Powered Committee”.

In this series of pieces, I propose that the instant case constitutes an immense setback in at least three aspects of fundamental rights jurisprudence – unenumerated rights, positive rights, and permissible classifications – whose many well-settled propositions have been substantially eroded in the Court’s pursuit of institutional abstention. Before I begin, it must be noted that the Court has laid down the following propositions:

1. Unanimously, that marriage cannot be elevated to a fundamental right, and the deprivation of a “right to marry” cannot be assailed under Articles 19(1)(a) or 21 of the Constitution;
2. Unanimously, that Section 4 of the Special Marriage Act, 1954 (“SMA”) and Section 4 of the Foreign Marriage Act, 1969 (“FMA”), which conceptualize marriage thereunder heteronormatively, are valid;
3. With a 3:2 split (Bhat, Narasimha and Kohli, JJ. speaking for the majority), Section 57(2) of the Juvenile Justice Act, 2015 (“JJ Act”), which confines adoption rights to “couple[s]”, refers only to married couples. Regulation 5(3) of the Adoption Regulations, 2022, which prescribes “two years of stable marital relationship” as an eligibility criterion for adopting, is intra vires the JJ Act;
4. Unanimously, that the effective prohibition on queer couples jointly adopting a child is indirectly discriminatory. With a 3:2 split (Bhat, Narasimha and Kohli, JJ. speaking for the majority), such indirect discrimination – along with other disadvantages faced by queer couples – must be “suitably redressed and removed by the State”, and cannot be remedied through the judicial route;
5. With a 3:2 split (Bhat, Narasimha and Kohli, JJ. speaking for the majority), a combined reading of Articles 19(1)(c), 19(1)(e), 21 and 25 does not warrant the imposition of a “positive obligation” on the state to recognize a “civil union” of same-sex couples;
6. Unanimously, that transgender persons in heterosexual relationships can marry both under personal law and the SMA.

In this series of pieces, I examine the judgement on the first four counts, arguing that it constitutes, overall, an attempt by the Court to justify its institutional abstention through delegitimizing the petitioners’ case. This is done through denying the existence of a right to marry, misidentifying the classification’s subject-matter, and creating artificial barriers on the Court’s ability to transform social structures. In this piece, I examine the first mode of delegitimization – the denial of a right to marry –arguing that such denial was achieved through the creation of three never-before-seen standards, which were specifically tailored to reach the conclusion of the non-existence of a right to marry. I also propose that the issue of the right to marry was designed as a red herring, and adherence to existing constitutional doctrine that prefers an examination of a restriction’s reasonableness instead of a right’s existence would have yielded a better, constitutionally-compliant outcome.

I make this argument in the following manner – first, I examine the three opinions on the right to marry, laying down and clarifying the standards employed therein; second, I propose that the three standards are largely unfounded, in that they have no basis in case-law, and make little logical sense when applied to unenumerated rights already elevated as fundamental; and third, I propose that the question of the right to marry was unimportant, and the case could have been decided in reference to existing doctrine, where the Court assesses a restriction’s validity instead of a right’s existence.

A Restrictive Conceptualization of Unenumerated Rights – the Court on the Right to Marry

The petitioners, based on precedent locating marriage in the values of expression, dignity and autonomy, urged the existence of a right to marry under Articles 19(1)(a) and 21 of the Constitution, which the state was unjustifiably restricting for same-sex couples u/s 4 of the SMA. Such unjustifiability arose due to its incompatibility with the “decency or morality” clause under Article 19(2), which had been previously interpreted by the Court to mean “constitutional morality” instead of “public morality”. Additionally, it was argued that the restriction impinged on same-sex couples’ dignity without fulfilling the proportionality standard, for the Union failed to demonstrate even a “legitimate state aim” for restricting marriage to heterosexual couples distinct from “bare animus against the LGBTQ+ community”.

The Court rejected this argument at its very first prong, holding that there exists no right to marry under the Constitution, rendering an assessment of the validity of its denial to same-sex couples unnecessary. The three judgements (Kaul, J. concurring with Chandrachud, CJ.) offer their own, separate reasons in refusing to elevate marriage to the level of a fundamental right. Bhat, J. finds the state’s non-involvement in the creation of the marital institution fatal (¶45-6); Chandrachud, CJ. finds the state’s excessive involvement in creating the contemporary significance of marriage fatal (¶183); and Narasimha J. finds the persistence of “customary practices and religious beliefs” governing marriage as demonstrating its status as ab-initio restricted, rendering moot the question of its status as a right (¶12).

Bhat, J., writing for the majority, offers two reasons to deny marriage the status of a fundamental right –first, that marriage is prior to, and external to the state, for the state only “utilize[s] or accommodate[s]” a wholly independent structure; and second, since marriage is a non-state institution, any recognition of a “fundamental right to marry” requires a horizontal conceptualization, a task the Court cannot undertake:

45. …[M]arriage existed and exists, historically and chronologically in all of the senses – because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it…This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right…

46. If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, [which apply to both state and nonstate agencies and actors], it cannot be operationalized…

For Bhat, J., therefore, for an unenumerated right to be elevated to the level of a fundamental right, its existence – at least in part – must be owed to the state, and its effectuation must not require the creation of norms governing non-state persons. Essentially, in his view, it is the state’s non-involvement in the creation of the marital institution that prevents access thereto as a fundamental right.

On the other hand, Chandrachud, CJ. offers substantially contrary reasoning to disqualify marriage from the status of a fundamental right. He finds that instead of the state-independent existence of marriage, it has been the state’s active involvement in creating conditions of the contemporary significance of marriage that caused a demand for its constitutionalization in the first place. The “non-constitutional” origin of the reasons necessitating the elevation of marriage to a fundamental right, in his opinion, prevents such elevation (¶183). In buttressing his claim, he lays down two factors to determine when an unenumerated right may be elevated as fundamental – first, a specific fundamental right must be incapable of being properly effectuated in the absence of the unenumerated right; or second, the unenumerated right must be central to “values or the identity of the Constitution” (¶160-1). In his opinion, the right to education was deemed a fundamental right in Unni Krishnan v. State of Andhra Pradesh for no reason other than its centrality to the “values that the Constitution espouses”, while privacy was deemed a fundamental right in Puttaswamy v. Union of India independent of the “content given to privacy by the State” (¶184). He notes that the reasons necessitating marriage’s elevation to a fundamental right have been coloured by the state’s conferral of “material and expressive” benefits on the marital union, an insufficient justification for elevation:

184. The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted.

Narasimha, J. finds yet another reason why marriage cannot be deemed fundamental – even though the state has legislated on marriage, such as by providing minimum marriageable ages, prohibited relations and modes of succession, such legislation almost always accommodates customary and religious practices governing the same. Such accommodation of religious norms in marriage, in his opinion, means that marriage is ab-initio restricted, rendering moot the question of a right:

12. In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practises, and religious beliefs…Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognized within the institution of marriage, cannot but be said to be restricted.

From these three opinions, the following propositions emerge – first, a right external to the state, or having an origin that predates the state, cannot constitute a fundamental right; second, an unenumerated right, whose contents have been coloured by state action, cannot constitute a fundamental right; and third, a right attached with pre-existing religious or customary limitations cannot constitute a fundamental right.

Three Standards of Apocryphal Origin – Assessing the Court’s Treatment of the Right to Marry

The imposition of such restrictions in elevating unenumerated rights to fundamental rights, it is submitted, are wholly unfounded, and are products of expediency, not constitutional doctrine. In no prior case has the Court employed Bhat, J.’s tests assessing the temporal emergence of the impugned unenumerated right with the emergence of the state, or Chandrachud, CJ.’s test of a right “coloured” by state action being ineligible to constitute a fundamental right.

The Court’s standard for elevating unenumerated rights to fundamental rights has been consistently liberal, for it has elevated unenumerated rights to this status regularly, even when the implications of such elevation are remotely foreseeable or make little conceptual sense. G. Soundarajan v. Union of India, for example, recognized the “right to development”, achieved through the establishment of a nuclear power plant, as a fundamental right (184); Association for Democratic Reforms v. Union of India read the “right to know” into free expression under Article 19(1)(a) (¶44); Unni Krishnan, as stated above, recognized the right to education under Article 21; Satwant Singh v. Passport Officer recognized the “right to travel abroad” under Article 21 (¶57); Amit Sahni v. Commisioner of Police recognized a general “right of commuters” as a fundamental right, which trumped protestors’ right to assemble peacefully under Article 19(1)(b) (¶19); R.L.E.K. v. State of Uttar Pradesh – along with a slew of environmental litigation judgments – has recognized a general “right to clean and healthy environment” under Article 21; and in Anoop Banarwal v. Union of India, Rastogi J. has recognized the right to vote as a fundamental right “flow[ing] through Article[s] 15, 17, 19, 21” (¶68).

Travel, education, commutation, and the environment, it is submitted, are external to the state, and predate the state – but have still been conferred with a fundamental right status. Further, Chandrachud, CJ.’s test of a prior colouring of the impugned unenumerated right, if applied to the above cases, would mean that neither the right to education, nor the “right to know” would be fundamental rights, for both Unni Krishnan (¶86-90) and ADR (¶7, 9-10) extensively document the role of state agencies in materializing these imperatives.

I now address the judgement of Narasimha, J., which proposes that a right substantially intertwined with religious and customary restrictions cannot be deemed fundamental. He notes that legislation governing marriage – both religious enactments and the SMA – save uncodified religious custom, which in turn imposes many restrictions on marriage (¶7-12). This conceptualization, it is submitted, is regressive, and marks a setback in the judicial pursuit of democratizing the “private sphere”. The architecture of personal laws in India is such that it enables the coexistence of religious custom alongside many legislative and judicial modifications. Laws governing marriage and permitting custom are of the kind that they legislatively entrench custom as the decision-making rule to decide particular outcomes – Section 6(3) of the Hindu Succession Act, 1956 requires classical Hindu law to be followed to determine coparcenary shares, and Section 5 of the Hindu Marriage Act, 1955 (“HMA”) permits the existence of legislatively-prohibited but customarily-accepted marriages. The situation envisioned u/s 5 of the HMA, Narasimha, J. notes, is similarly present in the Parsi Marriage and Divorce Act, 1936, and the Indian Christian Marriage Act, 1872 (¶9). More importantly, he notes that the Muslim Personal Law (Shariat) Application Act, 1937 (“Shariat Act”) also mandates the use of custom to decide norms of marriage (¶9).

In Shayara Bano v. Union of India, Nariman and Lalit JJ. have noted the Shariat Act, which also saved the application of uncodified Muslim law to mattes of divorce, caused the conferral of a statutory status to such custom, for the state authorized the use of custom as the sole “rule of decision” (¶47-8). This meant that was no appreciable difference between a piece of legislation prescribing norms for divorce itself, and a legislation authorizing custom to make the final call. Custom for marriage, akin to custom for divorce, must be treated as statute its application is secured solely by the latter. The persistence of custom in matters of marriage, therefore, cannot serve as a justification per se to deny marriage the status of a fundamental right. Further, the principle saving uncodified personal law from fundamental rights challenges, laid down in Narasu Appa Mali v. State of Bombay, has been referred for reconsideration in Indian Young Lawywers’ Association v. Union of India, indicating that its limited constitutional immunity might not even be long lived.

This brings us to the argument of Narasimha, J. that remains – marriage is ab-initio “restricted” – by custom or otherwise, preventing its elevation as a fundamental right. Two objections may be laid to this – first, like the tests on elevation propounded by Bhat, J. and Chandrachud, CJ., this test is also of apocryphal origin, never having been invoked prior; and second, it presumes, without justification, that an entitlement existing alongside restrictions cannot constitute a right. On the second objection, it must be noted that the nature of rights is such that they materialize with numerous limitations, and an approach denying the existence of a right based on its presently limited materialization risks perpetually entrenching the status quo. This approach, effectively, is contrary to Chandrachud, CJ.’s – while he states that an entitlement cannot constitute a right if its contents possess an origin external to the Constitution, Narasimha, J.’s standard assesses only the entitlement’s contemporary operationalization, which – if found riddled with obstacles – negates its claim to a right. Further, in case this standard were to be adopted, it would be hard to justify the existence of a right to privacy in the dawn of widespread surveillance, or a “right to clean and healthy environment” in cities that are the world’s most polluted.

The Right to Marry – Does it Matter?

The question of the existence of a right to marry, however, is a red herring. The existence of a specific unenumerated right need not be demonstrated by a petitioner when they experience a violation of their dignity, privacy or autonomy. The question, instead, is whether the present state action (which, in our case, is Section 4 of the SMA/FMA) is such that it infringes a pre-existing fundamental right of the petitioner, and not whether the petitioner has a right to exactly what the state action prohibits. In other words, if state action prohibits activity “X”, which puts the petitioner on a disadvantage in terms of their dignity or privacy, the question is not whether the petitioner has a right to do exactly “X”, but only whether the impugned state action infringes the petitioner’s general fundamental right to dignity or privacy under Article 21. Once this basic minimum task has been fulfilled by the petitioner, the burden shifts on the state to justify its restriction, which it may do in accordance with principles of proportionality. In Akshay Patel v. Reserve Bank of India, for example, the petitioner did not have to show the existence of a specific right to sell PPE kits under Article 21, showing only an infringement thereof in light of state action regulating such sale (¶29); in Re: Ramlila Maidan Incident, the petitioners only showed an infringement of their personal liberty due to state action evicting persons sleeping peacefully, not having to show how the Constitution guarantees an explicit “right to sleep” (¶38); in State of Maharashtra vs Prabhakar Pandurang, the petitioner detenu only showed how state action preventing him from sending a book outside prison infringed his personal liberty, not having to show how a “right to write a book” is a fundamental right (¶8); and in Francis Coralie Mullin v. Administrator, the Court noted that a meeting one’s lawyers and family while in prison would also constitute a fundamental right, not imposing the burden to show its existence on the petitioner (¶8).

What, however, about the right to privacy, whose existence has been debated by a long line of cases? I submit that case-law dedicated to hollowing the scope of a right, instead of examining the validity of state-imposed restrictions, is largely disingenuous, and enters this discussion primarily in pursuit of justifying state action by negating the existence of a right. M.P. Sharma v. Satish Chandra denied the existence of a right to privacy in order to buttress the validity of CrPC-conferred powers of search, and all ERP jurisprudence – whose epitome is found in Ananda Margis (II) – seeks only to ease state intervention in religious affairs by mandating each petitioner to demonstrate their religion’s foreseeable dismantling without the impugned practice. In asking the petitioner to demonstrate the existence of a specific right, the Court turns the table of burdens, rejecting a challenge at its very inception by creatively crafting the right’s non-existence.

In the instant case, the Court’s discussion on the right to marry suffers from the same malaise – its denial thereof seems specifically designed to defeat the petitioners’ case even before it begins. Three judges develop novel standards to determine when unenumerated rights warrant elevation as fundamental rights, with the three standards – if applied to past doctrine – would likely result in the deletion of many rights already read into Article 21. Additionally, the standards make little sense when applied inter-se – while Chandrachud, CJ. holds that an entitlement cannot constitute a fundamental right if its contents are coloured by “non-constitutional factors”, Narasimha, J. effectively requires the very same “non-constitutional factors” to enable a substantially unrestricted materialization of the entitlement. Further, Bhat, J.’s prohibition on a right preceding the state is equally suspicious, for many entitlements, as discussed above, have originated independent of the state.

Conclusion

On this basis, I submit that the reasoning offered in refusing to deem the right to marry fundamental is highly questionable, for the standards laid down have little basis in case-law, yielding contradictory results when applied to previously elevated entitlements. At the heart of the judgement lies the Court’s pursuit of institutional abstention, with such abstention being justified through a delegitimization of the petitioners’ case – the first mode of which was denying the existence of a right to marry. This question itself was unnecessary, and designed as a red herring to further justify the continued violation of dignity of non-heterosexual persons. The message, therefore, is that there exists no right for non-heterosexual couples to assert, obviating any discussion of its persistent violation. It also means that some violations of dignity are more valuable than others, for legal standards exist, or be created conveniently, to craft a denial of dignity as lawful.

Guest Post: Rekindling the Proportionality Test for Protective Discrimination under Article 15(3) [Part I]

[This is a guest post by Kartik Kalra. It is the first of a two-part series on the evaluation and application of a rekindled framework to test protective discrimination under Article 15(3).]

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Article 15 consists of a set of prohibited grounds, limiting Parliament’s ability to treat classes differently based on religion, race, caste, sex and place of birth. It creates an exception for “women and children” within the Article, letting the state make sex-based classifications in the form of “special provisions.” The history of Article 15(3) is widely considered one of perpetuating sex-based stereotypes in the name of protection, with some authors locating its role in “justifying provisions which [are] downright derogatory”.

In this two-part series, I examine the history of case law on Article 15(3), propose a rekindled proportionality test to save discriminatory laws under that Article, and apply this framework to test the saving of pensionary benefits and their cessation on a widow’s remarriage. At times, striking down stereotype-perpetuating laws solely because of their stereotypical nature may produce socially sub-par outcomes, for some stereotypes are often true and laws are made in cognizance of the same. Section 125 of the CrPC is one such example, which creates a regime of maintenance only for women, children and parents, excluding men from its domain. The pensionary regime, which will be discussed in the following post, is another such example: the state recognizes that following the death of their husbands, women may be dependent, and makes provisions for pensions accordingly. Once a widow remarries, the state considers that they may no longer depend on it, for they would look to their new husband for their sustenance. This logic, while based on a quantifiably true understanding of the economic dependency of women over men, feels uncomfortable. A law of this kind, despite taking cognizance of true stereotypes, also risks actively perpetuating them. The effects of validating such a law would reaffirm the dependency stereotype, causing a disadvantage to women as a class. Simultaneously, women being the beneficiaries of maintenance or pensionary regimes, are also advantaged by such laws.

Navigating this line between recognizing and entrenching stereotypes is akin to walking on eggshells, for there exists no determining principle to save some stereotype-perpetuating laws within Article 15(3) and strike down others. In this piece, I attempt to develop such a determining principle in the form of a four-pronged test that is based on quantifiability, historical disadvantage, lesser-discriminatory means, and the balancing of advantages and disadvantages. In order to do so, I first assess Article 15(3) in light of quantifiably true stereotypes, followed by positing this new test and demonstrating its functionality.

Stereotype Perpetuation and Article 15(3)

The usual account of the evolution of Article 15(3) jurisprudence is as follows: there is one line of cases where the victimization of women occurs in the name of ostensible protection, to which cases such as Yusuf Abdul Aziz v. State of Bombay and Leela v. State of Kerala belong; and that there is a more recent line of cases that includes Anuj Garg v. Hotel Association and Joseph Shine v. Union of India that deny the saving of stereotype-perpetuating laws within Article 15(3). The former line is considered to lie in a paradigm of romantic paternalism that portrays women as the weaker sex that needs the continued protection of men. One author considers romantic paternalism an unwritten bargain where “economic support and protection given by the male [is exchanged] for subordination in all matters, sexual service and unpaid domestic work”. In exchange for the ostensible protection that the state gives women under Article 15(3), it presumes their subordination in the private realm. The latter line of cases does away with this paradigm, taking into consideration the historical disadvantages faced by women that presently necessitate special provisions, and limiting the protective ambit of Article 15(3) only to such provisions.

This separation does not, however, hold true for case law on quantitatively-verifiable stereotypes that also confer a discernible advantage on women. Many laws take into account a state of economic dependency that women have on men: compassionate appointments to government jobs, maintenance u/s 125 of the CrPC, sex-based reservations, and the pensionary regime are some examples. This can also be factually assessed: only a fifth of India’s female population is working, as opposed to nearly four-fifths of men. Laws recognizing this stereotype and making disparate treatment have been subject to multiple constitutional challenges. In State of Andhra Pradesh v. P.B. Vijayakumar, a rule preferring women over men in state employment was under challenge. Recognizing the historical disadvantages faced by women that necessitated a rule that officially prefers women over men, the Court acknowledged that special provisions are primarily intended to address the historic economic exclusion of women:

7. The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.

In Ramesh Chander v. Veena Kaushal, the constitutionality of Section 125 of the CrPC was challenged on the ground that it provides for maintenance only for women, excluding men. This was saved on the ground that it recognizes an existing reality and functions as a measure of social justice (¶9). Chaturbhuj v. Sitabai reaffirmed this purpose of the Section 125, pointing to the general state of economic dependency of all classes eligible for maintenance (¶5); Ramesh Rege v. Gauri Rege held that a law providing for maintenance for unmarried daughters is based on their economic dependence and confers an advantage on them (¶8); Cyril Britto v. Union of India held that a law prohibiting the arrest of women judgement-debtors would be saved due to their economic dependance, for the law serves as a “recognition of a reality” (¶8);  Shrikrishna Eknath Godbole v. Union of India reaffirmed the role of a law preventing the arrest of women judgement-debtors to concern their economic dependence (¶9,10); Dattatreya Motiram More v. State of Bombay upheld a law reserving seats for women by referring to the advantage being conferred on a historically excluded group:

7. The proper way to construe Article 15(3), in our opinion, is that whereas under Article 15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in favour of women is permissible, and when the Stale docs discriminate in favour of women, it does not offend against Article 15(1). Therefore, as a result of the [j]oint operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against men, but it may not – discriminate in favour of men against women.

In the above set of cases, we can observe the invocation of distinct determining principles to save laws under Article 15(3): Ramesh Chander relies on quantitative verifiability, P.B. Vijayakumar focusses on remedying historical disadvantage, and Dattatraya More relies on the conferral of an advantage on women in the form of reservations of seats. Another principle has been invoked in Anuj Garg:

50. “The test to review such a protective discrimination [under Article 15(3)] statute would entail a two-pronged scrutiny:

(a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle,

(b) the same should be proportionate in measure.

Further, consider the following remark in Vasantha v. Union of India, a case assessing the constitutionality of a rule prohibiting the employment of women in factories at night:

72. In the present case, the provision is not a protecting provision so that it could be tested with reference to Article 15(3) or Article 15(4) of the Constitution but it is a restriction and therefore, the validity of such restricting provision has to be tested in the anvil of Article 15(1) of the Constitution.

The Court, therefore, drew a line between protective and restrictive provisions, indicating that a law curtailing the rights of women cannot be saved under Article 15(3). This was also invoked by Chandrachud J. in his concurrence in Joseph Shine:

189. Article 15(3) encapsulates the notion of “protective discrimination”. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of “protection”. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation…Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3).

It can, therefore, be observed that Courts have offered fragmented, and at times, intuition-based reasonings to save some laws under Article 15(3) but reject others. In the following section, I coalesce these distinct reasonings into a four-pronged test to determine whether a law can be saved by Article 15(3).

A Test to Evaluate Protective Discrimination

At this stage, it must be noted that all cases except Anuj Garg and Joseph Shine addressed laws based on stereotypes whose quantitative veracity was verifiable, which ultimately concerned the socioeconomic disadvantage and economic exclusion of women. Preventing their arrest due to judgement-debt, calling for special maintenance provisions, and the reservation of seats are all ultimately exercises in the recognition of stereotypes. Laws made in pursuance of the dependency stereotype, therefore, have been unwaveringly upheld.

Stage 1: Quantitative Verifiability

On this basis, I propose the first prong of the test, which would require the law to be made in pursuance of a stereotype that is quantitatively verifiable. If the law is based on a stereotype that isn’t true at all, no question of its saving under Article 15(3) arises. If the stereotype of lack of safety in establishments selling alcohol is false, then all matters end there, and the law cannot be saved within Article 15(3). Consider the use of this prong in Joseph Shine: since the law was based on the stereotype of a woman’s lack of sexual autonomy, which is undoubtedly false, the law cannot be saved as a “special provision” under Article 15(3).

Stage 2: Remedying Historical Disadvantage

The use of the second prong is essential to paint a true image of the reasons necessitating the use of Article 15(3). Its conceptual underpinnings are reflected adequately in the abovementioned extract from P.B. Vijayakumar, which pertains to the structural economic exclusion of women that causes the present status of economic inequality, necessitating remedial measures. Article 15(3) has the same conceptual underpinnings as that of reservations under Articles 15(4) and 16(4), well-summarized in Subba Rao J.’s dissent in T. Devadasan v. Union of India, approved in all cases thereafter:

26. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs.

The use of Article 15(3), therefore, must be cognizant of the reasons that necessitate it. Like reservations under Articles 15/16(4), special provisions are created in a context where the historic political and economic exclusion of women has continuing implications. Arguments of petitioners in Cyril Britto or Shrikrishna Godbole, which point to the unfairness in creating criminal immunity for women in offences that men are imprisoned for, miss the larger picture of historical disadvantage that necessitates such laws. A stereotype-perpetuating law, therefore, must have its roots in remedying historical disadvantages.

Stage 3: Availability of Lesser Discriminatory Alternatives

The third prong is an exercise in finding lesser-discriminatory means that can reach the same end that the law seeks to achieve. Essentially, this prong is a test of over-inclusiveness: is there a possibility of the creation of a narrower class to whom the impugned stereotype-perpetuating law can apply, which can avoid the vice of essentialism? The test of over-inclusiveness has been used in equality jurisprudence in, inter alia, Indian Hotel and Restaurant Association v. Union of India, which held the prohibition of any dance performance in some establishments to be bad due to the simultaneous prohibition of both sexually inappropriate and ordinary dances, making it over-inclusive (¶20); Navtej Singh Johar v. Union of India, which held the inclusion of both consensual and non-consensual sexual intercourse u/s 377 to be over-inclusive (¶221); and Inspector Ravina v. Union of India, which held the inclusion of all forms of unwillingness, that which was the result of the exercise of bodily autonomy and that which concerned one’s true unwillingness as a ground to disqualify one from promotion to be bad for over-inclusiveness (¶12).

The state, therefore, would have the obligation to prove that there is no narrower class to whom the stereotype-perpetuating law can apply, which would prevent over-inclusiveness and the portrayal of an entire sex-based class a certain way.

Stage 4: Balancing Between Benefits and Burdens

It is evident from case law that the conferral of a benefit on women is necessary for the law to be saved by Article 15(3), and a restriction cannot masquerade as a protection. Malhotra J.’s concurrence in Joseph Shine also relied on the following reasoning:

274. The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”.

There is, at the same time, harm that could result from the saving of laws under Article 15(3), which pertains to the perpetuation of stereotypes. Given the balancing between the conferral of benefits on women and the harm resulting from the perpetuation of stereotypes, this prong may be considered akin to the last prong of the traditional proportionality test. The state, therefore, would have the burden to prove that the benefits being derived from via the protective measures are greater than the harm caused due to the perpetuation of stereotypes.

This stage, like its traditional proportionality counterpart, is also value-based and requires a subjective assessment of the value accorded to particular principles. Thus, even though the exclusion of men from the domain of Section 125 of the CrPC has the effect of perpetuating a stereotype of women as dependent, a judge may come to a conclusion that the benefits being conferred on women via this law outweigh the disadvantages caused by the perpetuation of stereotypes. The treatment of a law of this kind under the third prong, however, is a different issue.

Navigating the Thin Line Between the Recognition and Entrenchment of Stereotypes

The simultaneous evaluation of these four prongs is necessary in order to navigate the thin line between the recognition of a stereotype and its active entrenchment. While Anuj Garg posits a two-pronged test, its context pertains to stereotypes that are neither quantitatively true (lack of safety for women in establishments selling alcohol), nor have the effect of conferring an advantage on women, for the law caused their economic exclusion. For laws that concern a quantitatively verifiable stereotype, an immediate declaration of unconstitutionality may cause a devastating levelling down: the state can argue that there is no scope for maintenance provisions for women if economic independence is the constitutionally mandated starting point. This was the disagreement between O’Regan and Kriegler JJ. In the South African Constitutional Court’s judgment in President of South Africa v. Hugo, a case concerning a remission of prison sentences of mothers with children younger than twelve years. In a challenge to the exclusion of men constituting the perpetuation of sex-based discrimination due to the assignment of child-care duties to women, O’Regan J. made the following remark:

112. To determine whether the discrimination is unfair it is necessary to recognise that although the long-term goal of our constitutional order is equal treatment, insisting upon equal treatment in circumstances of established inequality may well result in the entrenchment of that inequality.

O’Regan J. considered that the denial of the present stereotypical reality of women engaging in child-rearing, while desirable in the long run, would produce an undesirable outcome of their continued incarceration at present. While Kriegler J. ultimately concurred with the majority on the validity of the remission, he considered its underlying reasoning in women’s status as caregivers of children to be constitutionally unsound:

80. In my view the notion relied upon by the President, namely that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns.

The navigation of the issue of quantifiably verifiable stereotypes must, therefore, occur with great caution. While the production of socially sub-par outcomes due to an unrealistic commitment to constitutional ideals is undesirable, so is the indefinite perpetuation of sex-based stereotypes. In order to navigate this, the four-pronged test would perform the following tasks: the first prong of quantitative verifiability will ensure that only those rules concerning true stereotypes can be saved by Article 15(3), with the perpetuation of false stereotypes being entirely excluded from that Article’s domain; the second prong will ensure that there is a nexus between the allegedly protective provision and its historical underpinnings, ensuring that a true image of the need of such a law is painted; the third prong ensures that wherever a lesser-discriminatory alternative in the form of a narrower class is available, it is employed instead of the impugned law; and the last prong of the weighing of advantages and disadvantages creates an additional possibility of saving stereotype-perpetuating laws where the Court assesses the benefits being conferred on women to outweigh the disadvantages via the perpetuation of stereotypes.

On this basis, the rekindled test to save stereotype-perpetuating laws within Article 15(3) comprises of the following prongs:

1. the law must be based on stereotypes that are quantitatively true and verifiable;
2. the stereotype must be perpetuated in pursuance of remedying historical disadvantages faced by women;
3. there must be no availability of a lesser-discriminatory alternative than the impugned law; and
4. the advantage conferred on the historically disadvantaged group (i.e., women) must be greater than the disadvantage generated via the perpetuation of stereotypes.

As I have demonstrated, the present regime on saving laws within Article 15(3) functions in an ad-hoc manner, offering very little in definite determining principles to save some laws but reject others. Even Joseph Shine, which is widely lauded for affirming the true role of Article 15(3), doesn’t rely on a strict principle to save some laws but reject others, relying only on the notion that laws “entrench[ing] paternalistic notions of protection” cannot be saved by the Article. For all practical purposes, this doesn’t leave us in a position better than Cyril Britto and Ramesh Chander, both of which posit that laws made in the “recognition of a reality” can be saved under Article 15(3). The navigation of the line between recognizing and entrenching stereotypes, I submit, can best be done via this four-pronged test.

Guest Post: Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case

[This is a guest post by Megha Mehta.]

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A Division Bench of the Supreme Court is currently hearing SLPs from Resham v. State of Karnataka, (MANU/KA/0912/2022) the Karnataka High Court judgement upholding the ban on hijab in state government-run educational institutions. Judging by what has been reported in legal news portals, the hearings have gone on the tangent of whether it is permissible to proscribe a ‘uniform dress code’ (a sartorial precursor to the UCC?) in ‘secular’ government institutions. Keeping aside the debatable nature of some of the observations made by the Bench, the issue now risks being collapsed into the same category as controversies involving Sikhs’ right to wear the turban in the army, the rights of Muslim airforce officers to have beards, whether the essential religious practices [ERP] test applies, etc.

However, this eclipses the larger jurisprudential point, i.e., to what extent should the State/judiciary intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women? Whose version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves? This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions challenging the practice of polygamy and nikah halala amongst Muslims.

I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender equality and religious freedom: Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’). In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’ between the right to equality and protection against gender discrimination versus the right to freedom of religious practice. Moreover, in both cases the Court has sought to resolve this conflict by applying considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the women affected by the practice.

Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test, and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral divorce disadvantages Muslim women. Indeed, the majority as well as the dissenting opinions referred to the Muslim woman in protectionist language, framing her as a victim of religious oppression. [1]

In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the Sabarimala temple is an “essential practice” of Hindu religion. Rather, he commented that it is essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement, ¶122) affirming the idea that Hinduism has always been egalitarian. On the other hand, Nariman J. and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution. (¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices should be to bypass the ERP test altogether. Instead, the question should be whether the impugned practice results in the exclusion of a group of citizens and thus violates the fundamental principles of dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained in the Constitution. (¶215-216)

There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect. From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation, promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious practice has the effect of denying civic equality to women. Notably, the anti-exclusion principle as developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s ‘capabilities approach.’ Nussbaum has also argued, in relation to the Hindu Code Bill debates and the Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights. This particularly includes practices which stigmatize individuals on account of their sex. [2]

Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian Constitution’s transformative potential is a powerful tool for checking the subordination of women by religious norms. However, there are some important nuances which are not expressly clarified by the judgement though they may be implied therein—who is the correct authority for making assessments about what constitutes ‘dignity’ and ‘exclusion’? What if the affected group does not see religious worship and the enjoyment of fundamental rights in bright line/hierarchical terms—what if women wish to build a feminist reinterpretation of the religious practice into the law rather than arguing for it to be declared illegal/unconstitutional? It may be argued that since the anti-exclusion principle is undoubtedly a tool for achieving substantive equality, the views of the purportedly marginalized group should take precedence over that of any other authority. However, if you apply intersectionality as a framework, how should the State/judiciary respond to fractures within the group? What if upper-caste women and Dalit women have substantially differing ‘moral understandings’ of a religious practice? What about differences between Sunni and Shia Muslim women? Etc. etc.

In this respect, neither Shayara Bano nor the Sabarimala judgement have directly quoted women worshippers’ views on how they are excluded by the impugned practice or discussed dissonances therein—arguably it’s the judges’ own moral views on the subject which are taking center stage. The Sabarimala judgement has in fact, expanded the scope of the Supreme Court’s jurisdiction to entertaining PILs against allegedly exclusionary religious practices even if no woman worshipper has personally complained of discrimination (The petitioners in that case did not subscribe to the worship of Lord Ayappa). The counsel for the respondents had raised this issue in their submissions before the Supreme Court. However, both Nariman J. and Chandrachud J. emphasized in their respective concurring opinions that the “gravity of the issue” necessitated that the petition be heard, notwithstanding this anomaly. (Sabarimala judgement, ¶198, 224. Both judges cited Adi Saiva Sivachariyargal Nala Sangam v. State Of Tamil Nadu, (2016) 2 SCC 725, 737, ¶12 on this point.) Interestingly, it was the lone female justice, Indu Malhotra J. who highlighted in her dissent that permitting PIL’s in matters relating to religious practices, particularly by persons who do not subscribe to the faith, “would open the floodgates to interlopers” to question such practices, “and that the perils are even greater for religious minorities if such petitions are entertained.” (¶447) Notwithstanding criticisms of ‘anti-feminist’ thinking/conspiracy theories of a general pro-temple management stance concerning her decision, permitting ‘ideological challenges’ does create a due process issue given that the Court’s precedent will bind the affected group, i.e., religious women, without any mechanism to ensure that their interests are adequately represented. [3]

It can be counter-argued that Resham presents a substantially different bundle of facts since over here Muslim women are not challenging the constitutionality of a religious practice on the grounds that it demeans them, but are rather seeking the autonomy to continue following it contrary to State diktat. To that extent the application of the anti-exclusion principle should not encounter any difficulty if the women are able to prove that wearing the hijab does not stigmatize them as unequal, but is in fact essential to facilitating their full participation in civil society. Nevertheless, the High Court has completely ignored this distinction. The Advocate General of Karnataka quoted the Sabarimala judgement to argue that the hijab as a form of ‘compulsion of dress’ is not acceptable as it violates ‘constitutional morality’ and ‘individual dignity.’ The High Court went a step further and quoted Dr. B.R. Ambedkar on how the purdah system brings about the “segregation of Muslim women” and makes them “helpless and timid” to legitimize its conclusions on why the hijab militates against anti-exclusion and equality of opportunity (This of course, completely ignores the fact, as argued by Devdutt Kamat, that purdah and hijab are sociologically distinct practices).

The aforesaid reflexive application of the Sabarimala judgement to Resham is better understood from a law and political economy lens. From a legal realist perspective, though the Constitution embodies a transformative vision of Indian society, it is also in some respects a political compromise, given the ghost of Partition. Hence whilst Article 25(1) explicitly makes religious freedom subject to other provisions of Part III of the Constitution, Article 25(2) delegates the power to undertake social reform to the State. This echoes Dr. Ambedkar’s assurance to religious minorities during Constituent Assembly debates that “all that the State is claiming…is a power to legislate” and that their personal law would not be modified without popular consensus. (See Constituent Assembly Debates (Vol. VII), Dec. 2, 1948 speech by B.R. Ambedkar 7.65.178) In both Shayara Bano and the Sabarimala judgement, the Supreme Court has opened the floodgates to ‘ideological challenges’ to religious practices, sidestepping determination of popular consensus and deliberation by the legislature on the matter. The Karnataka government’s example indicates that such interventions by the judiciary are likely to push the executive to reclaim the mantle of ‘social reform’, and appropriate concepts like ‘constitutional morality’ and ‘dignity’ to enforce its own political agenda of ‘formal equality’ amongst religions [See 1].  On the other hand, the Supreme Court while hearing the challenge to the hijab ban, continues to parallelly act as a counter-majoritarian theological reformer in cases like polygamy/nikah halala. Scholarship critiquing rights-based reasoning has highlighted that the outcomes of ‘rights’-based cases often depend on the subjective political commitments of the judges hearing the case more than the inherent content of rights, which makes rights discourse ripe for appropriation across the political spectrum. [4] Therefore there is no guarantee that the same understanding of anti-exclusion which was applied in the Sabarimala judgement will be extended to similar cases involving ideological contestations over purportedly ‘anti-women’ religious practices (as evidently happened in Resham). In the political tangle between a majoritarian executive/legislature and a judiciary which is prone to changes in Bench composition, women’s voices are bound to be lost.

Thus, rather than delving into vague speculations about ‘secularism’, ‘liberal constitutionalism’ and the problematic ERP test, the Court should take a closer look at the anti-exclusion approach and refine it in a manner that can be used to resolve the conundrum of enforcing gender justice in religious communities. It is worth asking: which institutions are legitimately equipped to address such concerns? Can there be reconciliation, rather than rights conflict, between religious liberty and gender equality? (Malhotra J.’s dissent in the Sabarimala judgement indicated the possibility of a harmonious approach.) How can women’s voices be brought to the forefront? How do we avoid the problem of legal paternalism, i.e., courts/legislatures thinking they know ‘better’ than women themselves as to whether a particular practice is ‘dignifying’ or ‘exclusionary’? How do we deconstruct ‘woman’ itself as a monolithic category? These questions are particularly pertinent to any adjudication on the hijab, given that the existing binary between denouncing it as ‘oppressive’ and accepting it as a mandated Quranic injunction ignores the spectrum of unique reasons that Muslim women have for wearing it. Till the time courts adopt an adequate intersectional feminist analytical framework, we are unlikely to find much satisfaction in judicial reasoning on the issue.

Endnotes

1. Ratna Kapur, Gender and the “Faith” In Law: Equality, Secularism and the Rise of the Hindu Nation, 35(3) Journal of Law and Religion 407, 418 (2020).
2. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 188 (2012).
3. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy Requirement, 93(2) Harvard Law Review 297, 306, 308 (1979).
4. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 198 (Wendy Brown & Janet Halley eds., 2002); Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart xi, xix (2021).

‘Atypical’ Love: The Supreme Court’s Decision in Deepika Singh vs CAT

[This is a guest post by Karan Gupta.]

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In a recent judgment delivered in Deepika Singh v. Central Administrative Tribunal and Ors., the Supreme Court of India granted relief to a woman, who had been denied maternity leave on the ground that she had previously availed child-care leave for her two non-biological children. Although it is a short judgment, the underlying premises and the observations recorded have far-reaching implications for the socio-legal understanding of parental-care as well as the traditional understanding of the ‘family unit’.

I argue that the line of enquiry adopted by the Court was informed by the target beneficiary of the provisions (women) and the manner in which gender-ascribed parental-care roles exclude women from the job market. The Court relied on these ascribed roles for the limited purpose of assessing whether twin-benefits of maternity leave and child-care leave may be extended. At the same time, the Court was cautious to avoid the trap of essentialising women with child-care responsibilities [I]. I assess how the Court’s expansion of the traditional parent-child paradigm as extending beyond biological children has implications for the traditional socio-legal understating of the ‘family’ as being a fixed and unchanging unit comprised solely of a married cis-heterosexual man (father/husband) and a cis-heterosexual woman (mother/wife), and children born to them. I explore the broader contributions of this to Indian jurisprudence [II]. I conclude that the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, the Court has invited a re-imagination which offers a significant contribution to broadening the ambit of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone.

Facts

The case concerned a challenge to the denial of maternity leave to a woman (‘appellant’) for her first biological child. Under Rule 43(1) of the Central Services (Leave Rules) 1972 (‘1972 Rules’), a female government employee “with less than two surviving children” may apply for maternity leave for a period of 180 days. Under Rule 43-C, a female government employee with minor children may apply for child-care leave for a maximum period of two years to take “care of up to two children”. The Post Graduate Institute of Medical Education and Research (‘Institute’) denied the appellant’s maternity leave application on the ground that she had entered into the register and availed child-care leave for two children of her spouse from his previous marriage. Consequently, her first biological child, deemed by the Institute to be her third child, disentitled her to maternity leave under Rule 43(1), as she failed to meet the statutory condition of having fewer than two surviving children.

The court of the first instance (Central Administrative Tribunal) and the appellate court (High Court of Judicature) dismissed her challenge on similar grounds. The core question before the Supreme Court, centered around Rule 43(1), was whether a woman who availed child-care leave for two non-biological children was disentitled from availing maternity leave for a biological child.

Holding

The Court held that maternity leave and child-care leave constituted distinct entitlements, with the latter being available at any time (for instance, during the child’s education or sickness) and not just at the time of birth. The Court further held that merely because the appellant undertook child-care responsibilities “in ways that may not find a place in the popular imagination”, she was not disentitled from availing maternity leave. The Court concluded that “the fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child.” Thus, even though the Institute had permitted the appellant to register two non-biological children and avail child-care leave, she would be entitled to maternity leave under Rule 43(1) for her first biological child.

It is how the Court reached this conclusion that is worth unpacking in some detail.

Analysis

Framing the line of enquiry under a (beneficial) delegated legislation

Note that the 1972 Rules are silent on whether the word ‘children’ in Rules 43(1) and 43-C means biological children only. A focus on defining the word could have resulted in an anomalous situation. If the Court had concluded that ‘children’ in Rule 43(1) meant only biological children, the appellant would have been granted relief, but a strong argument could then be made to deny the grant of child-care leave under Rule 43-C for non-biological children (as both provisions use the word ‘children’). On the other hand, if the Court had concluded (as the Respondents argued) that the word ‘children’ in Rule 43(1) included non-biological children, the appellant would have been denied maternity leave on the ground that her first biological child is a deemed third child.

Could an alternate line of enquiry be framed which may avoid this anomalous situation? The Court shifted focus away from the ambit of the word ‘children’ to the target beneficiary of the two provisions – women. This involved an exercise in determining the objective with which the 1972 Rules were framed.

The Court examined similar provisions (under the Maternity Benefit Act 1961) and held that the objective of these provisions is to ensure that childbirth or child-care responsibilities do not disentitle an individual from being paid their wages during a period of leave for childbirth or child-care. In their logic, the 1972 Rules “entrench and enhance” the general non-discrimination principle of Article 15 of the Constitution and flow from the enabling provision in Article 15(3) to enact beneficial provisions for advancing the interests of women. Having reached this conclusion, the Court’s enquiry was further informed by the effect of gender-ascribed parental roles in preventing women from accessing the economic marketplace.

The Court opined that that in cis-heterosexual families (such as the present case), women often undertake a disproportionate share of child-care. The Court relied on statistics which found that women spend 577% more time on unpaid work than men (presumed to account for disproportionate child-care responsibilities), and held that “women continue to bear the primary responsibility for child-care”. Consequently, the 1972 Rules align with Constitutional postulate under Article 15 and cognate legislation and constitute socially beneficial delegated legislation.

An important question is apposite here – does this reliance on gender-ascribed parental roles unwittingly essentialise women with child-care? The Court avoided consciously falling into this trap. The Court noted that women are “pressed” to undertake a disproportionate share because of “gendered roles assigned to women and societal expectations”. Compelled by these social circumstances, they often find themselves excluded from the economic marketplace. The Court was careful in recognizing that child-care includes maternity leave, paternity leave and child-care leave. These observations are significant. The Court referred to gender-ascribed parental roles which operate in society to prejudice and stereotype women (de facto) to frame the nature of the 1972 rules as a beneficial delegated legislation. At the same time however, the Court carefully rejected an essentialisiation through an underlying reasoning that the idea of women as caretakers is not ‘natural’ but ascribed.

The recognition of de facto inequality or unfavorable treatment and employing it in extending a benefit to those at its receiving end itself promises broad implications beyond a case on maternity leave. Recall here that it is a common defense against indirect discrimination claims generally that as long as the law applies equally to all people (de jure equality), it is irrelevant how the same may perpetuate inequality in effect on the ground (de facto inequality). In this understanding, any interpretation of the law or action operates independently of the social current and on-ground realities. However, a fundamental problem with this acontextual interpretation is that it overlooks that the legal order, in fundamentally seeking to govern social relations, must be informed by social realities. For instance, it is odd to fix an arbitrary minimum wage without a complete understanding of present-day wages, the purchasing power of those wages, and the minimum standard of living required for a fulfilling life. There is a strong argument then social currents and power structures must be recognised and inform the interpretation of the law.

Here, the Court undertook two distinct steps – first, it recorded a finding on the objective of the 1972 Rules by focusing on women as the target beneficiaries and second, crucially, it recognised and relied on de facto inequality caused by gender-ascribed parental roles to inform its understanding of the 1972 Rules and conclude that it is a socially-beneficial delegated legislation. In the process, it affirmed that the law and its interpretation must be alive to social realities, including de facto inequality which operates in society. Further, it is possible to inform our understanding and the interpretation of the law by recognising de facto inequality, without essentialising/crystallising those identities (see Seigal’s excellent work on how a rejection of de facto inequality in informing law and policy has complicated the affirmative action debate of the SCOTUS).

Adopting the reasoning above enabled the Court to frame the core enquiry in the adjudication – whether an individual could be extended a twin-benefit (child care-leave and maternity leave) under a beneficial delegated legislation. This was a viable alternative to focusing on the ambit of ‘children’ and consequently adopting one of the two alternate paths which would frustrate one benefit. This sets the stage for the judgment to assume further significance in inviting a re-imagination of parental care and the understanding of ‘family’.

The Forms of Parental Care and Familial Love

In the traditional parent-child paradigm, parental care is assumed to be restricted to biological children. The Court recognised that this understanding ignores the myriad ways in which individuals come to assume parental-care responsibilities – either by choice or circumstance. Guardians and caretakers of children, who often occupy the roles of ‘mother’ and ‘father’, may “change with remarriage, adoption, or fostering.” Thus, individuals often assume parental-care responsibilities towards non-biological children as well.

For instance, in the present case, the appellant had transcended the traditional parent-child paradigm and assumed the role of a parent by caring for two children who were born to her husband from his previous marriage. Similarly, an individual may adopt a child and consequently assume the role of a parent. In both cases, the individual transcends the traditional parent-child paradigm and assumes parental responsibility for non-biological children. By reading the terms ‘guardian’ and ‘caretaker’ on one hand and ‘parent’ on the other as non-exclusive terms, the Court was alive to social realities and questioned the foundation of restricting the understanding of parental-care to only biological children. To the Court (and rightly so), parental-care manifests in numerous ways which extends beyond biological children. On the face of it, these observations are significant in recognising that individuals manifest their love towards both biological and non-biological children and step into the shoes of a parent.

What implications does this have for the conception of the ‘family’?

The traditional parent-child paradigm often informs and is informed by an understanding of the family as a fixed and unchanging unit comprising a married heterosexual man (husband/father) and a heterosexual woman (wife/mother), and children born to them. In this understanding, the family unit exists for the procreation and care of children and by extension, a family unit is definitionally a marital union between a man and a woman. In society and in law then, any other union is not considered a family, and individuals in such unions who assume child-care would be guardians at best, but not parents. This understanding of the family, coupled with the traditional parent-child paradigm, excludes from the popular understanding of a family and parental responsibility any non-conforming structures which may comprise loving partners (including queer relationships) and child-care responsibility (including non-biological children).  

However, as the Court broadened the traditional parent-child paradigm to include parent-care outside marriage (i.e., through remarriage, adoption, or fostering), this opened one door to interrogate and reject the assumption of the family as a fixed and unchanging unit comprising a union between a man and woman. Addressing this understanding of the family, the Court held:

“…This assumption ignores…the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.” [Emphasis added]

The above observations are significant. The Court recognised that unmarried partnerships or queer relationships, though outside popular imagination, are manifestations of a family and are equally deserving not only of protection under the law (say in the negative sense of non-discrimination), but also the benefit of the law (say in the extension of social benefits and entitlements). To the Court, the family is not a fixed and unchanging unit, but is fluid in being a manifestation of the many ways in which we express love.

This expanded understanding of the ‘family’ is significant for two reasons:         

First, in India, the beneficiaries of marriage legislation (and by extension divorce and maintenance legislation) are cis-heterosexual individuals, and the beneficiaries of adoption legislation are married couples or single individuals. Whilst some benefits have been extended to unmarried partnerships, this is largely confined to cis-heterosexual partnerships. Presently, as same sex marriage has no legal basis, queer relationships are denied legal recognition of marital ties as well as the right to adoption. For instance, under the Adoption Regulations, 2017, framed by Central Adoption Resource Authority, despite some ambiguity, only married couples having at least two years of stable marital relationship are eligible for adoption. Thus, while there is no direct prohibition to same-sex couples adopting children, the lack of a legal recognition of same-sex marriage means that adoptions by same-sex couples are indirectly barred. Keep in mind that this bars not only individuals who enter atypical familial relationships from adopting/or fostering but also children from receiving love and care from such individuals.

Recall here my observations above that the Court’s recognition of de facto inequality and unfavorable treatment has broad implications beyond this case. Pending and future cases which either challenge the exclusion of certain forms of companionship or parent-care from legal recognition can bring to fore and rely on how the lack of legal recognition furthers de facto inequality and unfavourable treatment. In backdrop of multiple petitions pending before the Delhi High Court seeking the recognition of same-sex marriage and the opposing stand of the Union Government that ‘spouse’ means only a husband and wife, the observations on de facto inequality invite an interpretation which extends the protection under and benefit of the law, rather than denies the same. Further, the marked observations on unmarried partnerships and queer relationships as a manifestation of family assume significance in setting the basis for a precedent-backed argument for legal recognition.

Second, these observations contribute to the rising stream in Indian jurisprudence which broadens the understanding of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone. Recall here that in decriminalising consensual sexual relations between same-sex individuals and also recognising the right to love as extending beyond sexual acts, the Supreme Court in Navtej Johar had opined that the battle against:

“…the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.”

The Court also held that:

“…decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements.” [Emphasis added]

This steady stream has seen other recent inflows from different quarters. In 2019, the Madras High Court upheld a marriage between a cisgendered man and a transgender woman, thus legitimising the validity of marriage across different genders. In Shafin Jahan v Ashokan, the Supreme Court opined that:

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.” [Emphasis added]

This stream hints that the time is ripe to interrogate the socio-legal barriers which reduce the right to love to demarcated and pre-defined patterns of companionship. In Deepika Singh, not only did the Court recognise manifestations of love which cut across the traditional parent-child paradigm and the traditional understanding of the ‘family’, it also concluded that equal benefit of the law (here maternity leave) may not be denied on such basis. This advocates for a step further than the mere removal of legal barriers and extends to the benefits provided under law.

It appears that the Court did not record a definitive finding on the meaning of ‘children’ in the Rules 43(1) and 43-C. It appears to have avoided the anomalous situation noted above by expanding the traditional parent-child paradigm to include child-care for non-biological children whilst also opining that the Institute’s decision to grant child-care leave for the appellant’s non-biological children may be a matter on which the Institute took a compassionate view at the relevant time. Informed however by its understanding that the 1972 Rules facilitate the continuation of women in the workplace and that an interpretation which extends the twin-benefits of child-care leave and maternity leave should be adopted, the Court held that appellant should not be denied maternity leave merely because she entered into a parent-child relationship or undertook child-care responsibilities “in ways that may not find a place in the popular imagination”.

Conclusion

At first glance, the extension of the maternity leave benefit to the appellant appears to be a work-around explicit statutory text making maternity leave conditional to having fewer than two surviving children. However, as I have argued above, it is in the underlying premises and the reasoning adopted by the Court in reaching its conclusion, that the judgment assumes significance. By recognising gender-ascribed parental stereotypes and extending a twin benefit under the 1972 Rules on its basis, the Court advanced gender justice and also invited a more inclusive reimagination of the family. In recognising the numerous ways in which individuals manifest love towards children (remarriage, adoption, and fostering), and the atypical ways in which individuals manifest love towards one another (unmarried partnerships or queer relationships), the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, Deepika Singh marks a significant contribution to broadening the ambit of a right to love from being restricted to the right to form intimate relationships with a limited set of individuals to mean the right to form intimate relationships with anyone.

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Disclosure: the author is a former judicial-law-clerk of the judgment-author.

Guest Post: Misinterpreting Harsora – Male Complainants and the Domestic Violence Act

[This is a guest post by Mohammad Zayaan.]

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On 29.11.2021, the Judicial Magistrate (1st class), Jammu [hereinafter ‘Magistrate’], took cognisance of a complaint filed by a husband against his wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005 [hereinafter ‘Act’]. The Order handed by the Magistrate [hereinafter ‘order’] identifies the judgments in Hiralal P. Harsora v. Kusum Narottamdas Harsora [hereinafter ‘Harsora’] and Mohammad Zakir v. Shabana [hereinafter ‘Zakir’] as sufficient grounds to proceed against a wife under Section 12 of the Act. No further reasoning is provided as to how the two judgements lead to such an interpretation.

This post is divided into three parts. Part I deals with the importance of a judicial magistrate in the criminal justice system in India and how taking cognizance of such an act- though at the lowest level- could lead to wide (and unnecessary) ramifications for the accused. Part-II deals with the ratio of the two judgments in Harsora and Zakir, and what they actually held. Part-III argues that the order was erroneous as it misapplied the ratio laid down in Harsora and used Zakir as a precedent incorrectly, thereby arriving at an erroneous conclusion.

The Important of a Judicial Magistrate

A Judicial Magistrate (Ist Class), under Section 29(2) of the Code of Criminal Procedure [hereinafter ‘CrPC’] is empowered to pass any sentence authorized by law except the sentence of death, life imprisonment and imprisonment more than 3 years. They may also impose a fine up to Rs. 10,000. This amount has been increased to Rs. 50,000 in Rajasthan and Maharashtra. However, more importantly, they have the power to take cognizance of a complaint, which sets the entire criminal justice system in motion. Under Section 190 of the CrPC, Magistrates are empowered to take cognizance of offences after receiving a direct complaint from the aggrieved, upon a police report, upon information received from ant other person, or upon the concerned Magistrate’s own knowledge. In Nupur Talwar v. CBI, the Supreme Court of India noted as follows:

“We feel constrained to observe that at this stage, this Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice.”

Therefore, it is difficult for a higher court to scrutinize the process of taking cognizance by the magistrate. Consequently, erroneous orders given by magistrates in the backdrop of a fractured criminal justice system only increase the hardships faced by the accused.

What Harsora and Zakir held

In Harsora, two women (mother and daughter) filed two separate cases against their family members, alleging acts of violence on part of them. Three of the respondents were women, while one of them was a man. The case had been filed under Section 2(a) r/w Section 2(q) of the Act. Section 2(a) defines an aggrieved person as

“… any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”

Section 2(q) of the Act defined Respondent as:

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

The three female Respondents filed an application in the Court of the Metropolitan Magistrate seeking their discharge from the case. They argued that Section 2(q) only encompassed adult males as respondents and since they are not a part of that class or category, a complaint cannot be made against them under these provisions. However, the Metropolitan Magistrate dismissed this application. This order was appealed before the Bombay High Court, which overruled the verdict of the Metropolitan Magistrate and held that the wording of Section 2(q) clearly excludes any person other than an adult male from the ambit of the act, and therefore, women cannot be Respondents in such cases. This was further appealed in the Supreme Court of India, where it was argued that Section 2(q) of the Act was discriminatory and violated Article 14 of the Constitution of India. Apart from other issues, the Supreme Court primarily dealt with the constitutional validity of Sections 2(a) and 2(q) of the Act. In its judgment, the Court struck down a part of Section 2(a) and read down the words ‘adult male’ from Section 2(q), which essentially meant that a woman could file a complaint under the Act against anyone, irrespective of their gender. This, however, was strictly laid down in context of the Respondent, giving women the liberty to file cases against other women who might be complicit in their abuse.

In Zakir, a single bench of the Karnataka High Court misinterpreted Harsora to hold that a man can also file a complaint under the Act. The High Court held that since the words ‘adult male’ were removed from Section 2(q), “any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act”. However, the judge later withdrew this order on grounds of being ‘patently erroneous’ and restored the petition to the file. Therefore, the order in Zakir, notwithstanding the misinterpretation of Harsora, could not have been used as a precedent at all, as it had been subsequently withdrawn.

The Order

The Order given by the IInd Class Magistrate in Jammu essentially made two errors- firstly, it misinterpreted Harsora and repeated the error made in Zakir, and secondly, incorrectly relied on Zakir to support the misinterpretation. Not only was Zakir itself erroneous but was also withdrawn and therefore could not have been used as a precedent.

Harsora only stressed on who the respondents could be and did not deal with who could or could not file a complaint. The omitting of the words ‘adult male’ from Section 2(q) of the Act does not automatically imply that anyone could file a complaint under the Act, but only means that a case can be filed against anyone, rather than by anyone. Section 2(q) was struck down to expand the scope of the Act to include females who are complicit in acts of domestic violence, rather than to include men as complainants under the Act. The Court rightly looked at the Statement of Objects and Reasons of The Protection of Women from Domestic Violence Bill, a part of which reads:

“It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society.”

Therefore, the law was essentially brought to tackle the cases of domestic violence against women, who are affected by such violence disproportionately. The intent of the legislation coupled with a literal interpretation of the text of legislation clearly excludes men from filing cases under the Act.

Guest Post: Deconstructing the Paternalism in Section 66(1)(b) – Treasa Josfine v. State of Kerala

[This is a guest post by Unnati Ghia.]

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On 9^th April 2021, the Kerala High Court in Treasa Josfine v. State of Kerala directed the State authorities to consider an application submitted by the petitioner (a female trainee engineer) for the post of a Safety Officer in Kerala Minerals and Metals Ltd, on the grounds that she had been denied opportunity on the basis of her sex.

The petitioner’s grievance was that the notification published by the State inviting applications for the post applied only to male candidates, which was discriminatory under Articles 14, 15 and 16 of the Constitution. The counter affidavit filed by the State argued that the notification was in compliance with Section 66(1)(b) of the Factories Act, 1948. Section 66(1)(b) states that “no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M”. The submission of the State was that the post of a Safety Officer required the person so engaged to work round the clock, even during the night if required. Therefore, women could not be hired for this position under the provisions of the Factories Act. 

Reasoning of the Court

The Court in Treasa Josfine relied on two key decisions of the Kerala High Court. The first decision was that of Hindustan Latex Ltd. v Maniamma, which, in my opinion, does not appear to be a case under Section 66(1)(b). In Hindustan Latex, a Division Bench of the Kerala High Court observed that special provisions for women under Article 15(3) constituted an exception to sex discrimination under Article 14.

In Leela v State of Kerala, another Division Bench took the view that Section 66(1)(b) was a beneficial provision under Article 15(3). The Bench held that Section 66(1)(b) ensured that women were not taken away from their families, and they were protected from the “hazards” of working at night.

The Court also relied on Vasantha R v Union of India, where the Madras High Court held Section 66(1)(b) to be discriminatory under Articles 14, 15 and 16. Interestingly, the Madras High Court observed the validity of Section 66(1)(b) must be tested under Articles 14 and 15(1) because it was a restriction on women, as opposed to being a protective provision under Article 15(3).

In Treasa Josfine, Justice Anu Sivaraman agreed that Section 66(1)(b) is a beneficial provision intended to protect women. However, the Court observed that the Factories Act was enacted at a different time and in a different socio-economic context, particularly with respect to the roles played by women in society. Given this context, Section 66(1)(b)’s force could only be utilised to protect women, but would not constitute a reason to deny them engagement and opportunity if they are fully qualified [paragraph 15]. On this basis, the Court set aside the notification and held it to be violative of Articles 14, 15 and 16. 

The premise of the Court’s decision in Treasa Josfine is that the change in the roles played by women as they shift from domestic labour to wage labour warrants a different interpretation of Section 66(1)(b) [paragraph 14]. The Court relies on the Supreme Court’s decision last year in Ministry of Defence v. Babita Puniya, which held that justifications founded in stereotypical assumptions about women do not constitute a valid basis for denying opportunity. In light of this, the Kerala High Court held the denial of opportunity to the petitioner under Section 66(1)(b) is “completely untenable and unacceptable”. 

Within this reasoning, it is not clear which stereotype has caught the scrutiny of the court and rendered the notification unconstitutional. The Court refers to the fact that women capably work round the clock jobs in several industries today. From this, one may infer that the assumption that qualified women cannot work in a night shift or beyond 7 p.m. is the problematic stereotype in this case. If so, the application of Babita Puniya to this case is valid. 

However, this does little to detract from Section 66(1)(b) as it stands — that women cannot be employed for tasks beyond 7 p.m. The issues identified by Sivaraman J. in the notification therefore stand equally true for the main provision. Yet, the constitutionality of Section 66(1)(b) vis-à-vis the decision in Babita Puniya was not examined by the Court. 

There are two reasons as to why the Kerala High Court in Treasa Josfine may have refrained from entering into this discussion. First, the Judge sitting singly was bound by the previous Division Bench decisions in Hindustan Latex and Leela, and was obligated to follow the position taken in those decisions. Second, the petitioner appears to have challenged the constitutionality of Section 66(1)(b) only to the extent that it impacted her participation in the selection process. 

In this post, I now present reasons for why Section 66(1)(b) cannot withstand constitutional scrutiny under Article 15, in light of the same principles as identified by the High Court. 

Unconstitutionality of Section 66(1)(b)

The premise of Section 66(1)(b) is that women do not have the capability to protect themselves in a job that requires them to work at night. Thus, the denial of opportunity to women under Section 66(1)(b) is justified on the basis of a need for security. What are the issues with this approach?

First, it presumes women to be hapless victims requiring robust protection from the State. This is not to say that the workplace cannot be an unsafe environment for women, but this could be addressed without victimising them. Second, the approach under Section 66(1)(b) places the burden of this protection on women themselves by completely removing them from a “dangerous” work environment, as opposed to taking steps to remedy the threat therein. 

Another rationale behind Section 66(1)(b) was highlighted by the Kerala High Court in Leela — the provision ensures that women would be able to take care of their families and that their children would not suffer. A similar argument was made before the Madras High Court in Vasantha R v Union of India. The Madras High Court held that women holding household duties is not a universal phenomenon, and did not constitute a reason for denying a night shift. 

Interestingly, this rationale was also explicitly rejected by the Supreme Court in Babita Puniya. There, Chandrachud J. observed that the argument that women could not meet their requirements of service due to domestic obligations was itself predicated on the stereotype of such obligations resting solely on women. Women are often pushed into and limited to the domestic sphere by the patriarchy itself. This is why it is problematic to deny employment opportunities or benefits on the basis that women have to devote time to the home, because it further entrenches the public-private divide. 

On the basis of the anti-stereotyping principle in Babita Puniya then, Section 66(1)(b) cannot pass muster. An obvious response to this argument is that even if it employs a stereotype, it is a special provision permitted under Article 15(3). For instance, the Kerala High Court maintains that Section 66(1)(b) is a special and beneficial provision for women, intended to protect them from exploitation. Admittedly, provisions such as Section 66(1)(b) have posed a legal conundrum, because courts generally conflate provisions protecting or prima facie in favour of women as necessarily being materially beneficial to them. 

The perils of this form of “protective discrimination” in favour of women have already been acknowledged by the Supreme Court in Anuj Garg v. Hotel Association. In Anuj Garg, a law prohibiting women from being employed in establishments serving intoxicants was struck down because it ended up “victimizing its subject in the name of protection”. Such laws presume that women inherently lack agency, and thus are examples of State sponsored paternalism. 

Justice Ruth Bader Ginsburg had pointed out a similar phenomenon in the United States in the aftermath of Muller v Oregon. In Muller, the US Supreme Court upheld a statute that prohibited women from working for more than 10 hours a day, due to the “unique vulnerability” of women. The decision in Muller resulted in a series of “protective” labor laws for women, which prohibited night shifts, limited the loads they could carry and excluded them from certain jobs completely. According to Ginsburg J., these laws prevented women from competing with men, resulting in lower paying jobs, and also reinforced traditional gender roles — all in the name of “protection”. Subsequently, in the first case Ginsburg J. argued before the US Supreme Court, Justice Brennan observed that protective labor laws placing women on a pedestal were, on closer inspection, often a cage.

Similar forms of gender discrimination are justified by Indian courts under Article 15(3). In response, Gautam Bhatia for instance has argued that “special provisions” must bear some relation to the historical and structural subordination of women. This would ensure that the State must identify and attempt to remedy specific forms of disadvantage, as opposed to provisions that pay lip service to equality and limit the agency of women. 

Conclusion

Notably, states such as Maharashtra and Kerala have altered the position under Section 66(1)(b) by permitting the employment of women post 7 p.m. provided that all safety and security safeguards are met by the employer. This leaves the employment of women entirely to the option of the employer, but does little to incentivise them, especially given the benefit of a statutory justification to deny employment in the first place. In light of these reasons, Section 66(1)(b) must not be understood as a “special or beneficial” provision for women. Instead, laws that mandate safeguards and security for women at the workplace without removing them from the workplace altogether would be better suited to the objective of a “beneficial provision” for women. 

Guest Post: Nisha Priya Bhatia vs Union of India – Redefining the Scope of Sexual Harassment?

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

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[This is a guest post by Megha Mehta.]

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On 19.8.2008, Nisha Bhatia, a senior RAW officer [‘appellant’] attempted suicide in the reception of the Prime Minister’s Office to protest the mishandling of her sexual harassment complaint by RAW [‘PMO Incident’]. In April 2020, her long-standing legal battle finally culminated in a judgement by a Division Bench of the Supreme Court (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394) awarding her Rs. 1 lakh as compensation for the violation of her fundamental right to life and dignity under Articles 14 and 21 of the Constitution.

In this essay, I argue two points: first, this decision paves the way for radically redefining sexual harassment by extending its scope from unwelcome sexual behavior to all forms of gender-based discrimination at the workplace. Furthermore, it imposes positive institutional liability for failure to provide a safe and gender-sensitive working environment over and above that stipulated in the Vishakha guidelines (Vishakha v. State of Rajasthan, AIR 1997 SC 3011), and the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [‘POSH’]. Second, the Court, however, fails to apply this understanding of sexual harassment as a form of workplace discrimination while analyzing the mala fides of the appellant’s compulsory retirement by RAW.

Expanding the Scope of Sexual Harassment

A brief summary of facts: the appellant was directly recruited to RAW in 1988. She was posted as Director, Training Institute (Gurgaon) and Director at the Delhi HQ in July and August 2007 respectively. It was while serving in this capacity that she filed a sexual harassment complaint on 7.8.2007 against Mr. Alok Chaturvedi (Secretary (R)-In-Charge of RAW) and Mr. Sunil Uke (Joint Secretary-In-Charge) alleging that they had victimized her for refusing to join an internal sex racket.

The organization constituted an Internal Complaints Committee (‘ICC’), as required by the Vishakha guidelines, after a gap of almost 3 months. Moreover the said ICC did not contain a “third party, either NGO or other body who is familiar with the issue of sexual harassment” as stipulated in Vishakha. The ICC was ultimately reconstituted with the addition of one Ms. Tara Kartha (Director, National Security Council Secretariat) as third-party member in April 2008-evidently not a NGO or person associated with sexual harassment issues. When the appellant refused to participate in the ICC proceedings citing non-compliance with Vishakha and the lack of authority vested in the ICC to proceed against Mr. Chaturvedi, the ICC ex-parte concluded that no allegation of sexual harassment was made out. It was only after the infamous PMO Incident that the PM constituted an External Committee under the chairmanship of a retired female IAS officer, which also concluded that the sexual harassment allegation was not proved. However the External Committee reported in its findings that the appellant’s complaint was not given proper redressal, and that Mr. Chaturvedi as an employer had committed gross violation of the Vishakha guidelines.

In the meanwhile, the PMO, through the Press Information Bureau, released a press note on the PMO Incident stating that the appellant was in a ‘disturbed state of mind’ and suffering from psychiatric ailments (This was later quashed by the Supreme Court vide order dated 15.12.2014 as violative of the appellant’s human rights and dignity, but an archived copy of the note is available here). Subsequently, the appellant was compulsorily retired under Rule 135 of the RAW (Recruitment, Cadre & Services) Rules, 1975 [‘1975 Rules’] due to her being ‘exposed’ as an intelligence officer. It is out of the appellant’s constitutional challenge to Rule 135 and her retirement order, along with the various writ petitions filed by her seeking injunctive reliefs against the respondents that the decision in Nisha Priya Bhatia has arisen.

The Court, relying on the External Committee’s findings, held that the respondents (Union of India and RAW) had violated the appellant’s fundamental rights and were liable to pay her compensation as follows:

102. The scheme of the 2013 Act, Vishaka Guidelines and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a non-hostile working environment is the basic limb of a dignified employment. The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace…The factual matrix of the present case is replete with lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. To wit, time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.

104. In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had been clearly impinged. Taking overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000 (Rupees one lakh only). Had it been a case of allegations in the stated complaint of the petitioner been substantiated in the duly conducted inquiry (which the petitioner had failed to do), it would have been still worst and accentuated violation of her fundamental rights warranting suitable (higher) compensation amount. (emphasis supplied)

The above discussion is an important step forward in Indian sexual harassment jurisprudence. In the United States, employment law scholars have long since critiqued sexual harassment law for being based on a ‘desire-dominance’ paradigm which places inappropriate sexual advances by men towards female colleagues at the center of the problem. This ignores the underlying structures of gender discrimination at the workplace which facilitate such behavior (Schultz, 1998, 2005). In the present case, Mr. Chaturvedi had allegedly commented to the appellant that instead of being worried about her career and children, she should find herself a man to ‘have fun’ with. Thus the appellant’s grievances stemmed not just from her supervisors’ pressurizing to join a sex racket, but from their overall discriminatory attitude, and a general organizational unwillingness to impose consequences for such sexist behavior.

The ‘desire-dominance’ paradigm is apparent in Indian sexual harassment law, inasmuch as both the Vishakha guidelines and POSH define sexual harassment only in terms of unwelcome behavior of sexual nature, and exclude other non-sexual forms of gender-based discrimination. The creation of a ‘hostile work environment’ is treated as sexual harassment only when it is connected with unwelcome sexual behavior (Vishakha, ¶16.2; POSH, Section 3), though employers are generally obligated to ensure safe working environments.

Further, though Vishakha recognizes sexual harassment as a violation of working women’s fundamental rights under Articles 14, 15, 19(1)(g) and 21, it is curiously silent on Article 16. There is no legal framework in India for recognizing sexual harassment as a form of employment discrimination akin to Title VII of the Civil Rights Act, 1964 and the Equal Employment Opportunity Commission in the United States. Rather, there is little emphasis on institutional liability under Indian law-while Vishakha does not expressly provide for employer liability (though it is implied that constitutional remedies are available), POSH only provides for the imposition of a criminal fine extending to Rs 50,000 for those who contravene its mandate (POSH, Section 26). This posits non-compliance as a criminal offence against the State and does not provide for any civil compensatory remedy to the complainant, though arguably the courts may direct that such a fine should be deposited in favour of the complainant under Section 357 of the CrPC.

Therefore Nisha Priya Bhatia is radical insofar as it expressly recognizes that regardless of whether her allegation is proved or not, a female employee may, as a matter of constitutional right, claim compensatory remedies from her employer for the creation of a hostile environment at the workplace. Further, this is treated as a distinct violation from the conventional definition of sexual harassment as the commission of unwelcome sexual acts, though the decision notes that the victim may claim a higher amount of compensation if such acts are proved. The terms ‘prejudice’ and ‘discriminatory’ are used broadly in the decision, and can hence be construed to account for the intersectionalities of gender, caste and class-based discrimination which female employees experience at the workplace. It can be hoped that in due course of time this protection will be extended to persons of all genders and sexualities who experience discrimination on account of not conforming to hegemonic standards of masculinity at the workplace. However, as Part II elaborates, this decision does not really break out of the ‘desire-dominance’ paradigm.

Sexual Harassment as a Labour Rights Issue 

Unfortunately, the reconceptualization of sexual harassment discussed in Part I comes only towards the fag end of the judgement. The Court does not apply this understanding of sexual harassment as a form of workplace discrimination while dealing with the validity of the appellant’s compulsory retirement by RAW.

The appellant had contended that Rule 135 of the 1975 Rules violates Articles 14 and 311 of the Constitution insofar as it confers the discretion to compulsorily retire an intelligence officer who is ‘exposed’, without the safeguard of an inquiry. Further, that her compulsory retirement was mala fide and an act of victimization. Though the Central Administrative Tribunal directed her reinstatement (while refraining from deliberating on the constitutionality of Rule 135), the Delhi High Court upheld the retirement order. The Supreme Court held, relying upon State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892 and State of U.P. v. Sri Shyam Lal Sharma, (1971) 2 SCC 514 that Article 311 is only attracted when the action being taken against a public officer is in the nature of a ‘punishment’ (¶29). Rule 135 is not covered by the scope of Article 311, as the order of compulsory retirement on grounds of ‘exposure’ did not entail any “charge, stigma or imputation” against the appellant (¶32). The Court further held, in reliance upon the Delhi High Court decision, that the order of compulsory retirement was not mala fide as it was justified on grounds of public interest (¶49) and that there is a presumption of “constitutional trust” in offices such as that of the PMO (¶57).

Additionally, the appellant’s prayer for amending the CCS (CCA) Rules, 1965, to provide adequate representation to sexual harassment complainants, was dismissed on the ground that it would infringe ‘separation of powers’ (¶94). This is even though the Court has, on previous occasion, directed the amendment of service rules and standing orders to give effect to the Vishakha guidelines (Medha Kotwal Lele v. Union of India, (2013) 1 SCC 311).

Therefore though the Court adopts a progressive understanding of sexual harassment while awarding compensation to the appellant, it sticks to the traditional gender-blind legal positivist perspective while upholding her retirement. The Court’s analysis fails to account for how transfers/premature retirements are frequently used as retaliatory tools in sexual harassment cases. Hence these can amount to ‘punishment’ so as to attract the application of Article 311. This is even though the decision notes that a ‘preliminary inquiry’ commencing 8.8.2008 (which is prior to the PMO Incident) had been conducted against the appellant on grounds that she was indulging in ‘misbehaviour’ and ‘unauthorized contact’ with the media. The Court observes that this inquiry indicates that the retirement order was not without application of mind (¶55). If that is so, then a certain level of ‘stigma’ was certainly sought to be attributed to the appellant. In this regard, the CAT order does a better job of analyzing how Rule 135 was ‘weaponized’, by noting that the reports recommending the appellant’s retirement may have been prepared by persons unfriendly to her (Nisha Priya Bhatia v. Secretary (PG & Coordination), Cabinet Secretariat, 2010 SCC OnLine CAT 549, ¶20-23).

It can be argued that from an intelligence organization’s perspective it seems perfectly rational to terminate the appellant’s services following such a highly controversial chain of events. However the conduct of the preliminary inquiry, along with the PMO’s press release, reveals a concerted effort to depict the appellant as a stereotypical hysterical/deluded female complainant, not a senior intelligence officer who was so traumatized by her hostile work environment that she was willing to set aside her repute (to the extent of stripping in court) and risk ‘exposure’ to bring attention to her cause. The fact that the appellant has borne such immense economic and psychological costs for bringing action against her employers, and their attempts to discredit her reputation, should prima facie have been interpreted as erasing any “constitutional trust” vested in them and prompted a more critical inquiry into their motivations for retiring her. Instead, the Court has effectively ‘settled’ the matter by awarding the appellant monetary compensation, which hardly corresponds to the loss of employment opportunity and the stigma of premature retirement.

Further, ¶99 of the decision notes that it was only after the PMO Incident that the sexual harassment inquiry was delegated to the External Committee, which ultimately found that there was gross violation of the Vishakha guidelines. The complete chronology of events (given in ¶53) strongly indicates that the appellant’s ‘exposure’ was a condition precedent to ‘exposing’ her hostile work environment. Upholding the appellant’s retirement effectively means that any female RAW officer who is sexually harassed by a superior would find herself in the catch-22 of either staying silent, or risking ‘exposure’ and losing her employment.

Pertinently, even in more conventional workplaces, Section 16 of POSH imposes a strict confidentiality requirement with respect to ICC proceedings. This is including the identity of the respondent therein, though information may be disseminated regarding ‘justice secured’ to a victim. Though this is presumably meant to safeguard the victim from stigma, it ties in with a general neo-liberal regulatory framework which ensures that workplaces can function without the hiccup of the inconvenience and disrepute caused by female labourers’ complaints.

If the Court had noted how sexual harassment is an institutional malaise as the starting point of its analysis, then perhaps the verdict on the compulsory retirement order would have been different. However, as the very first paragraph notes, the crux of the decision’s legal analysis is ultimately about maintaining the balance between the “security of a State organization” and the “individual interest of a person employed thereat as an intelligence officer”, not on holding the State responsible for ensuring safe working conditions for women. In this way labor rights jurisprudence treats sexual harassment at the workplace as the problem of the individual woman concerned, to be resolved discretely between her and her employer, rather than an employment discrimination problem for which the workplace is actively culpable.

As I write this, it is probable that labor laws in many states, if not nation-wide, will be suspended to facilitate industrial growth post the COVID-19 lockdown. This is even though the general negative economic impact of the pandemic is bound to exacerbate hostile work environments by forcing women trapped in financially precarious situations (particularly migrants and domestic workers) to submit to prejudicial and degrading conditions in exchange for work. Social distancing norms are likely to make workplaces prioritize the conduct of sexual harassment inquiries even lesser than they already do, though technology may be used to ease logistical difficulties. In such a situation it is all the more important that the State takes cognizance of preventing sexual harassment at the workplace as part of its constitutional obligation to ensure dignified working conditions, rather than just another brick in the wall of ‘crimes against women’.

All views expressed in the essay are personal.

Gender Equality in the Armed Forces

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

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On this blog, we have discussed in some detail the judicial approach to gender discrimination under the Constitution. Two recent judgments of the Supreme Court – delivered by a bench of Chandrachud and Rastogi JJ – have made an important contribution to contemporary jurisprudence on the subject. Both concerned the intersection of service law and gender equality – and, in particular, gender equality in the armed forces, a particularly fraught and thorny topic.

Babita Puniya

Secretary, Ministry of Defence v Babita Puniya concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of “females” into the army except where – and to the extent that – the Central Government might allow. In 1992, the Union Government issued notifications allowing women to join certain branches/cadres of the army (all were non-combat roles). These notifications – which were intended to operate for a stipulated period of five years – were later extended in 1996, 2005, and 2006, along with promotional opportunities. Then, in 2008, the Ministry of Defence issued a Circular authorising the grant of Permanent Commissions [PCs] to women, but only prospectively, and only in certain cadres.

Adjudicating writ petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the army on Short Service Commissions [“SSCs”], were entitled to PCs on par with their male colleagues. The Union of India appealed this decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.

Before the Supreme Court, the Union argued that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” (paragraph 28), and that in any event, Article 33 of the Constitution allowed for the fundamental rights chapter to be restricted when it came to the Armed Forces. It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.” (paragraph 31). In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.

These submissions were rejected by the Court. Chandrachud j. began his analysis by noting that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On the other hand, from 1991, there had been an “evolutionary process” towards inducting women into the armed forces (paragraph 50) – to the extent that in the 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women. In fact, this created an internal contradictions within the submissions of the union of India, as:

The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. (paragraph 52)

Going further, however, the Chandrachud J. noted that:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are „too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. (paragraph 54)

On a similar basis, the Court also rejected the blanket prohibition upon the grant of PCs to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis (paragraph 67). In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

Annie Nagaraja

The case of Union of India vs Lt. Cdr. Annie Nagaraja – involving Permanent Commissions in the Navy – was somewhat more complex. According to Section 9 of the Navy Act, women are not eligible for enrolment in the Indian Navy, except where – and on such terms and conditions – that the Central Government might specify (Chandrachud J.’s judgment refers to an interesting piece of history – at the time of the drafting of the Navy Act in 1957, there was a strong dissenting note in the Parliamentary Joint Committee objecting to this exclusion of women).

Now – simplifying the position somewhat – under the Navy Regulations, one of the qualifications for being inducted into the navy on a Short Service Commission [“SSC”] is that the applicant must be an “unmarried male.” SSC officers may subsequently be granted Permanent Commissions [“PCs”] on the basis of vacancies and suitability. In 1991, the Union Government issued a notification opening up certain branches of the Navy to women. Women, therefore, were entitled to take up SSCs, and it was noted that the policy for the grant of PCs would be formulated subsequently. Subsequently, in 1998, by another Notification under Section 9 of the Navy Act, more branches of the Navy were opened up to women. Soon after that in, in 1999, in a communication from the Ministry of Defence, it was clarified that women could serve on board ships, and that the policy governing PCs would be that which was already stipulated in the Regulations (see above).

Then, in 2008, the MoD issued another communication, stating that PCs to women SSC officers would be considered prospectively, and limited only to certain branches. In other words, women who had joined the Navy as SSCs following the opening up of recruitment after 1991, would not be considered for PCs. It was this that triggered the initial challenge before the Delhi High Court and the Armed Forces Tribunal, before finally winding its way to the Supreme Court.

Chandrachud J. began his analysis by noting that both the 1991 and 1998 Notifications lifted the bar for enrolment of women into the Navy, in certain branches (without expressly limiting them to SSCs) (paragraph 60). Consequently, when in 1999 the Government stipulated that the normal Regulations would apply for grant of PCs (which made them conditional on vacancies, suitability, and a recommendation from the Chief of Naval Staff), it was obvious that this would “cover both men and women serving on SSCs (paragraphs 64 – 65, 67). Consequently, the 2008 communication – which did not refer to these previous notifications and communications – could not change that fact.

As with Babita Puniya’s Case, however, the judgment’s bite lay in the analysis that came after the hard work of service law was done. In a section called “The Stereotypical Sailor”, the Court noted that the government had attempted to justify its stand by arguing that sea-duties were ill-suited for women as “there is no return to base”, and that Russian naval vessels had no separate bathrooms for women (paragraph 72). These arguments were roundly rejected, with Chandrachud J. noting that “the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.” (paragraph 74), and that:

arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies. (paragraph 74)

The Court concluded by moulding the relief in accordance with the different positions occupied by different sets of claimants, on the basis of the legal position that eligibility for PCs flowed from the 1991 and 1998 Notifications, and that the 2008 Communication making PCs prospctive from that date, was not valid (to that extent).

Analysis

Both judgments raise a few interesting issues. The first is that they add to the growing body of jurisprudence that brings the anti-stereotyping lens to issues of gender discrimination. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities – broad generalisations that reflected deep-rooted beliefs and assumptions about gender roles in society. As we have argued before on this blog, Articles 14 and 15 rule out discrimination based on such stereotypes and generalisations. While the Court’s historical record on this front – especially in the domain of service law – has been patchy, at least since 2007, there has been a more consistent application of the anti-stereotyping principle. These judgments, with their clear invocation of the principle, will make it even more difficult in the future for stereotype-based arguments to be justified in Court.

Secondly, these judgments reiterate that in a constitutional democracy, the Armed Forces are not – and cannot be – a rights-free zone. While Article 33 admittedly authorises the restriction of fundamental rights to the Armed Forces, any such restriction must be “necessary” for allowing the Armed Forces to fulfil their goals, and the burden of sowing necessity lies upon those who want to exclude the operation of fundamental rights. In both judgments, the Court was careful in how it navigated this thorny area: it reiterated the need for Article 33 to exist, while also ensuring that it could not be used as a sword to cut down the rest of Part III.

Thirdly, these judgments demonstrate an oft-neglected truth: that the Court ought not to bear the sole burden of articulating and enforcing fundamental rights. What is notable about both these cases is – as the Court itself noted in Babita Puniya – that the induction of women into the armed forces had been an evolutionary process that had begun in 1992. The State’s sweeping arguments about the unsuitability of women to be granted PCs, therefore, were undercut by its own evolving policy decisions. This made the task of the Court substantially easier: instead of forcing gender equality down the throat of a recalcitrant institution, it could simply point to how the institution’s own logic was at variance with the exclusionary arguments that it now put forward. Thus, instead of ending up in an adverserial situation – where the Armed Forces justified discrimination and the Court opposed it – what happened here was that the Court engaged in an immanent critique, essentially requiring the Armed Forces to follow their own policies to a logical conclusion.

Fourthly – and relatedly – this also shows, perhaps, the limitations of the possibility of reform through adjudication. Notably, the relevant provisions of both the Army and the Navy Act, which bar the recruitment of women into the Forces except where the government allows it – were not under challenge, and the Court was at pains to point out that fact, apart from also noting that the suitability of women for combat roles was not an issue about it. What would happen, however, if those Sections were to be challenged? Logically speaking, the anti-stereotyping approach – and, more particularly, the Court’s explicit rejection of blanket prohibition of PCs to women in command areas – clearly rules out the blanket restriction on recruitment in the Armed Forces (except where the government permits). Would that be a step to far for the Court to take, especially if the State and the Armed Forces were to take the defence of national security considerations? That would be interesting to see, but at the same time, the Army’s own opening up over the years – combined with the Court’s incremental approach in these cases – probably obviates the immediate imperative for more radical challenges.

The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?“

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.