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

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

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

The Opinion of Shakder J

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

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

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

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

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

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

The Opinion of Hari Shankar J

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes

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

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

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

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


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

Guest Post: Decisional Autonomy and Group Privacy – on the Karnataka High Court’s Hijab Judgment

[This is a guest post by Shreyas Alevoor.]


The ongoing Hijab controversy raises interesting questions about the limits of expression and privacy. The Karnataka High Court’s judgement begins by recognizing that one’s attire is an aspect of decisional autonomy and privacy, as set out in the Supreme Court’s judgement in KS Puttaswamy vs. Union of India. However, it then goes on to hold that the right to privacy is not of much significance in this matter [pg. 99], as a “substantive right [of privacy] metamorphizes into a kind of derivative rights in [qualified public] spaces” [pg. 100].

How the High Court chose to (not)engage with the privacy question has been discussed previously on this blog, but I want to make a few observations here. In Part I of this post, I argue that the High Court’s judgement is premised on an incorrect understanding of decisional autonomy as a facet of privacy. In Part II, I argue that Puttaswamy recognizes claims of privacy by groups, and such a claim can be successfully used as an alternative to the Essential Religious Practices (ERP) test.  

Decisional autonomy

Privacy is a recognition of the sovereignty of the individual. Decisional autonomy then becomes an exercise of sovereignty by the individual against “legislative or popular” morality. In Puttaswamy, Chandrachud, J.’s majority opinion defines it as “intimate personal choices, as well as choices expressed in public such as faith and modes of dress”, and notes that “personal choices governing a way of life are intrinsic to privacy”. It follows that decisional autonomy (as an aspect of dignity) is valuable only if it allows for the full expression of one’s personality, and in all spheres of an individual’s life and not merely the personal. Furthermore, it is crucial to note that the reasons for wearing a Hijab can range anywhere on a spectrum between choice and coercion, with it being virtually impossible to determine where on the spectrum a particular individual’s wearing of the Hijab lies.

Puttaswamy recognizes only very limited grounds for limiting the right to privacy – reasonableness under Art. 14, grounds provided under Art. 19, substantive due process under Art. 21, and compelling state interest. In the present judgement, all of this is brushed under the carpet, with the reasoning that the right to privacy is not engaged sufficiently. The word ‘autonomy’ appears only five times in the operative part of the judgement, and is almost always qualified by the statement “subject to reasonable regulation”. However, the only hint of a compelling state interest found is that of maintaining positive discipline and decorum within the classroom [pg. 105].

The High Court then goes on to defer to the wisdom of the Executive [pg. 121], and holds that the Government Order had proven a loose nexus between the “wearing of Hijab and the ‘law and order’ situation” [pg. 119], contrary to the requirement of proving a rational nexus.

In my previous post, I had argued that the challenge in this case is to balance freedom of expression and decisional autonomy on one hand, and the larger public interest of protecting public order and morality on the other; and on balance, the former should prevail over the latter. Here, I borrow from John Dewey and propose an alternative argument: that as social beings, the good of the individual (i.e., privacy) does not have to necessarily conflict with larger public interests. Dewey claims that rights should be valued based on “the contribution they make to the welfare of the community”, or else, individual rights in most cases would be trumped by the social interests. Indeed, there exists a social value in protecting the decisional autonomy to express oneself – that of promoting secular and democratic values – which is explicitly recognized in Nariman, J.’s concurring opinion in Puttuswamy:

82. The core value of the nation being democratic, for example, would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed.

As also by the majority in Puttaswamy [pg. 263]:

Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.

Reading group privacy into Puttaswamy

Without delving into its nuances, group privacy at its simplest not only seeks to protect the personal privacies of its individual members (derivative privacy), but also the privacy of a group as a group which shares common visions and goals (inferential or strong privacy).

There is reason to believe that Puttaswamy recognizes claims of privacy by groups.

The criticism of the Suresh Koushal judgement by the majority in Puttaswamy provides an excellent starting point. It considers how a general right to privacy intersects with gender and sexual orientation to create a “private space which protects elements crucial to gender identity” [pp. 169]. Here, we must also consider the implications of privacy intersecting with religious identity (which is a personal identity characteristic like gender). These implications are briefly considered in Bobde and Chelameswar, JJ.’s concurring opinions. Importantly for our purposes, the majority also held that the LGTBT community cannot be denied the right to privacy merely because it is a “minuscule fraction of country’s population” [pp. 126].

Bobde, J.’s concurring opinion notes that privacy “constitutes the springboard for the exercise of freedoms” under Art. 19:

31. … A peaceful assembly requires the exclusion of elements who may not be peaceful or who may have a different agenda. The freedom to associate must necessarily be the freedom to associate with those of one’s choice and those with common objectives.

33. The right of privacy is also integral to the cultural and educational rights whereby a group having a distinct language, script or culture shall have the right to conserve the same.

43. Exercising privacy is the signaling of one’s intent to these specified others – whether they are one’s coparticipants or simply one’s audience – as well as to society at large, to claim and exercise the right.

From Chelameswar, J.’s concurring opinion:

39. The choice of appearance and apparel are also aspects of the rights of privacy. The freedom of certain groups of subjects to determine their appearance and apparel (such as keeping long hair and wearing a turban) are protected not as a part of privacy but as a part of their religious belief. Such a freedom need not necessarily be based on religious beliefs falling under Art. 25.

Consider then the following line of argument:

  1. Decisional autonomy as a facet of privacy enables one to “preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices” against majoritarian diktats.
  2. The general right to privacy intersects with deep personal identity characteristics (like gender and religion) to create a space where elements crucial to that identity are protected.
  3. The right to privacy includes right to form groups (and also exclude people from the group), which have the right to preserve and promote their symbols of identity – language, culture, and forms of appearance and apparel in both private and public spaces.
  4. The right to privacy cannot be denied to a group merely because they are “minuscule”.

I would suggest that this is a better alternative to the ERP test. Among other things, the ERP test denies agency to smaller sects or dissenting groups within a religion which may not follow the practices of the majority. In the present case, the High Court held that the claimants had failed to meet the ‘threshold of pleadings and proof’, as they had not shown how long the petitioners had worn the Hijab; and if Islam would “lose its glory and cease to be a religion” if one does not wear the Hijab – without considering the possibility that there may be a group within Islam which deems the wearing of Hijab an essential to their identity. This is especially problematic in a diverse country like India, where cultural and religious practices differ across lines of class, caste and region.

Conclusion

The silver lining in the High Court’s order in the Hijab controversy is that it lays bare the problems with the ERP test. It also shows that cases involving questions of identity treated as mere thought experiments. This should be one of them good problems for the Supreme Court – it has an opportunity to update its discrimination, free speech and privacy jurisprudence, and hopefully, do away with the ERP test entirely.

Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself. In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?

It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education – with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.” The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam, and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter, and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab. Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion. This is particularly ironic when we think of the right as the “right to religious freedom”; the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate. The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes:

  1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
  2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
  3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same. This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”. Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society; what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect. And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere. On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.” But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School, where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity; and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all. On page 105, the Court notes:

An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.” It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:

It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach is more consistent with our Constitution.

Guest Post: The Hijab Case Through the Lens of Proportionality

[This is a guest post by Shreyas Alevoor.]


Previously on this blog, a case was made for the application of the disparate test to challenge the ban on Hijab. However, the indirect discrimination test ought to be applied with caution, and with awareness of the fact that Indian jurisprudence on indirect discrimination is still nascent. In Part I of this piece, I argue that arguments founded on indirect discrimination test may not be entirely effective. In Part II, I argue that the ban on Hijab, being a violation of Art. 19(1)(a) is better off being challenged on grounds of proportionality.

Let us return to the Karnataka government’s directive. The directive states that “clothes which disturb equality, integrity, and public law and order should not be worn”, and cites the Supreme Court’s judgement in Asha Ranjan vs. State as justification for this. The invocation of Asha Ranjan is problematic for several reasons, one of them being that its factual matrix makes it irrelevant to this controversy. But more on that later.

Indirect Discrimination and its Discontents

In the landmark US case of Griggs vs. Duke Power Company, disparate impact was said to occur when a policy, which is neutral at the face of it:

  1. Puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group, and
  2. Fails to satisfy a means-end justification test.

The two-factor test for indirect discrimination that the Canadian Supreme Court developed in Fraser vs. Canada, also recognized by the Indian Supreme Court, is as follows:

  1. Whether the impugned rule disproportionately affects a particular group;
  2. Whether the law has the effect of reinforcing, perpetuating, and exacerbating a disadvantage (social, political, and economic exclusion, psychological and physical harms).  

I submit that, under this test, the government order [“G.O.”] does not have the effect of indirectly discriminating against a particular group. The first prong of both the Griggs and Fraser tests requires that the protected group face a disproportionate impact compared to a comparator/cognate group. The evidentiary standard used in the United Kingdom to determine the disproportionality is that of the deliberately vague ‘particular disadvantage’. This is done to ensure that the parties or the courts do not get caught up in an empirical exercise, but rather employ an intuitive assessment of disparate impacts. The Court in Fraser similarly notes that the “disproportionate impact on the members will be apparent and immediate”, and will “show such strong association with the [group’s] traits.”

The State government’s directive requires the school to act against anyone who violates the dress code of the institution – which applies not only to Hijabs, but also any other articles of clothing with religious connotations. The disadvantage suffered is not ‘particular’, but universal. Indeed, Hindu boys wearing saffron scarves were barred from entering the classroom. Hence, the impacts of the measure does not show an association with the protected group’s traits.

Note that indirect discrimination is said to occur to when a measure that appears to uphold equality in treatment results in an inequality of outcomes, due to the systemic nature of discrimination. One can understand this with the example provided in Jones vs. Chief Adjudication Officer: in a large children’s party, the host announces that presents will be divided equally between all the girls and boys. Later, he announces that only the girls shall be given presents, and the boys will have none. After a while, the host discovers that the presents have been misplaced and thus nobody will receive a present. While there is discrimination in the first case, there is none in the second case as “the disadvantage to girls is not mirrored by any corresponding advantage to boys”. 

An Alternative Argument for Indirect Discrimination

How should the Court determine if a ban on Hijab perpetuates a disadvantage under the second prong of the Fraser test? It might have to investigate whether the Hijab is essential to the Muslim community – at which point it may again be drawn into the minefield of the Essential Religious Practice (ERP) test as it currently stands. Notwithstanding the principled arguments against the test, there are also practical difficulties in proving Hijab as an ERP.

Before I conclude this Part, I must recognize that a claim for indirect discrimination could exist, but not in the way previously discussed on this blog. In Fraser, the Court had noted that indirect discrimination not only results from headwinds against protected groups built into facially neutral laws, but could also arise from an “absence of accommodation for members of protected groups”. The refusal to accommodate Hijab may be construed as an absence of accommodation.

One can find a tiny sliver of the accommodation argument in the Delhi High Court’s judgement in Inspector (Mahila) Ravina vs. Union of India. Here, a female CRPF officer was denied promotion because she was unable to attend a pre-promotion course in 2011 due to her being pregnant at the time, even though she did complete it successfully in 2012. S. Ravindra Bhat, J. (as he was then), held that the State could not make her choose between the pregnancy and a promotion. It was held that such a choice, while made under a “seemingly neutral reason of inability of employee” would be discriminatory. Here, the dispute results not from built-in headwinds, but from not making an accommodation for pregnancies. However, the difficulty with the accommodation argument is that the Supreme Court’s nascent indirect discrimination jurisprudence as developed in Navtej Johar and Lt. Co. Nitisha does not explicitly recognize claims of accommodation as yet.

Proportionality Challenge

In a previous blog post, Hari Kartik makes an excellent argument for clothes as symbolic speech. I further argue that the Karnataka government’s directive and its grounds for the ban (equality, integrity, and public law and order) fail on proportionality grounds in so far as it violates Art. 19(1)(a).  

A proportionality test at its simplest consists of the following four prongs: Legitimate Aim, Rational Nexus, Necessity, and Balancing.

Equality as a Justification

It is difficult to understand how religious expression can undermine equality if the right to such expression is available to people of all religions. In any case, ‘equality’ (as cited in the directive) is not a ground for restricting free speech and expression under Art. 19. Neither is it a “legitimate interest of sufficient importance” in this case, for reasons I will explain shortly.

Tests of indirect discrimination also prescribe proportionality. The measure should “correspond to a real need and the means must be appropriate” to achieve the stated objectives, as stated in Bilka Kaufhaus GmbH vs. Weber von Harz. A reasonable accommodation of religious items of clothing does not result in inequality by abolishing uniforms. In this case, the demand is for a Hijab over the uniform. In Navneethum Pillay, the Court rightly pointed out that religious and cultural displays in public “[are not] a parade of horribles, but a pageant of diversity”.

Integrity and Public Law and Order

Whatever the possible arguments for a short-term prohibition in light of a sensitive situation, it is difficult to justify the ban as a long-term measure as it prohibits potentially every form of religious expression. There exists no rational nexus between such a ban and protecting law and order. The ban is not only limited to the Hijab, but also other articles of clothing of religious significance. In MRF Ltd. vs. Inspector Kerala Government, the Court held in the context of reasonableness that that the restriction imposed by a measure should not be “arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.” There exist better alternatives to an outright ban – that of making accommodations on a case-by-case basis after careful scrutiny.

The final Balancing prong, as Mark Tushnet notes, requires a determination of “whether the government’s goals are important enough and are advanced enough by the statute so as to justify the actual impairment of liberty”. The ‘equality’ objective of the directive fails here as it is not important enough. While ‘integrity and law and order’ is an important objective, a ban does not fulfill it.

The directive by invoking Asha Ranjan also tries to fulfill the Balancing requirement (albeit unintentionally) but doesn’t really succeed at it:

Larger public interest prevails upon the individual interest not by negating individual rights but by upholding larger interests and to ensure relationship between the institution and the students.

Let us compare the following formulations:

Proportionality: Government’s goals and measures taken should be important enough to justify the impairment of liberty.

Directive: Larger public interest (i.e., government goals of law and order) and measures taken (i.e., the ban) are important to ensure relationship between the institution and the students.

This is the first problem: for reasons explained above, the government goals and the measure taken do not justify the impairment of liberty, but only justify a “relationship between the institution and students”. What this relationship is, no one really knows. 

The other problem is that this attempt at a balancing act draws a false dichotomy between a larger State interest (education, and public order) on the one hand, and individual rights (freedom of speech and expression, and freedom of faith and conscience) on the other. It claims that it does not wish to “negate individual rights”, but that is precisely the effect of the ban – a veritable Tacitus’ desert.  In Serif vs. Greece, the European Court of Human Rights held that the role of the State is to “not remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. This was relied upon in Sarika Watkins-Singh vs. Aberdare Girls’ High School to hold that schools had a ‘very important obligation’ to ensure that its students are tolerant as to the beliefs of other people, and respect other people’s religious wishes.

For these reasons, the G.O. – and the hijab fan – fail the test of proportionality.

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

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

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

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

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

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

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

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

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

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

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

Compelling an Accused to Unlock their Mobile Phones: A Critique of the Kerala and Karnataka High Court Judgments

On 29th January 2022, the High Court of Kerala handed down a brief judgment, holding that the Prosecution, in criminal cases, is entitled to access the data on an accused person’s mobile phone, and that this does not violate the constitutional guarantee against self-incrimination (P. Gopalakrishnan alias Dileep v State of Kerala). In doing so, the High Court purported to rely upon a recent judgment of the Karnataka High Court in Virendra Khanna v State of Karnataka. Both Dileep and Virendra Khanna, in turn, relied upon the eleven-judge-bench judgment of the Supreme Court in State of Bombay v Kathi Kalu Oghad, and considered themselves to be bound by it.

In my respectful submission, both the Karnataka and the Kerala High Courts misread Kathi Kalu Oghad, and arrived at an incorrect conclusion (see also this detailed critique of the Karnataka High Court judgment on The Proof of Guilt Blog, which arrives at the same conclusion). In paragraph 5 of its judgment, the Kerala High Court reproduced the findings in Oghad, but did not explain how that case – which concerned the compelled taking of fingerprints and handwriting samples – was applicable to the data on an individual’s mobile phone. In a somewhat longer analysis, the Karnataka High Court noted that:

The XI Judge Bench of the Apex Court in Kathi Kalu Oghad’s case has categorically held that providing of a thumb impression or impression of the palm or foot or fingers or specimen in writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion. Mere providing of an access of to smartphone or e-mail account would not amount to being a witness, the information that is accessed by the Investigating officer on the smartphone and or the e-mail account being only access to the data and/or documents, it is for the Investigating officer to prove and establish the same in a Court of law by following the applicable Rules of evidence.

It is submitted that this is evidently incorrect. The fact that a particular piece of evidence has to be proved in accordance with the procedure set out in the Evidence Act is not relevant to the question of self-incrimination; if that was the case, then even direct oral self-incrimination would, paradoxically, not fall within the prohibition of Article 20(3), since even that would still have to be “proved and established” in a Court of law in accordance with the Evidence Act.

A little later in its judgment, the Karnataka High Court then went on to agree with a submission that compelling production of a password to a phone was “akin” to fingerprinting, which had been upheld in Kathi Kalu Oghad. The analogy, however, proceeds upon a fundamental misreading of Kathi Kalu Oghad. In Oghad, the reason why fingerprints and handwriting samples were held to be outside the scope of testimonial compulsion was that, in themselves, they were neutral. A fingerprint or a handwriting sample did not by itself incriminate an accused, but only when it was compared with, say, a fingerprint from the scene of the crime, or the handwriting on a forged letter. This is obviously not the case when it comes to accessing data on the phone, because it is the data itself that has the potential to incriminate the accused. Indeed, both Dileep and Virendra Khanna appear to ignore the part of Kathi Kalu Oghad where – endorsing the judgment in M.P. Sharma – it was explicitly held that documentary evidence falls within the ambit of Article 20(3). The moment we accept that documentary evidence falls within the ambit of Article 20(3), it is impossible to reconcile the compelled unlocking of mobile phones – in order to access the data therein – with the guarantee against self-incrimination. Once again, the Karnataka High Court’s argument that data on a mobile phone is akin to a murder weapon, in that by itself it does not incriminate an accused, but still have to be “proved” in a court of law would, if taken to its logical conclusion, effectively destroy Article 20(3) altogether, because every piece of evidence – including oral testimonial compulsion – needs to be “proved” in a court of law before the Prosecution can rely upon it.

The Karnataka High Court then went on to recite a parade of horribles that would follow if mobile phone data was protected: “no blood samples can be taken, no body sample for the purposes of DNA analysis could be taken, no search of a house or office could be undertaken … offences like cyber crime could not be investigated.” To start with, as I have already demonstrated above, comparing mobile phone data to blood samples is an analytical error. But perhaps what is more disquieting about this particular form of consequential analysis is how it subordinates fundamental constitutional rights to the convenience of the investigative officer. The Karnataka High Court never stopped to ask why Article 20(3) exists in the Constitution, or to consider the possibility that the whole reason why we have a guarantee against self-incrimination is because there should be some limits upon what the State can do to an individual in the name of “efficient investigation.” In the Karnataka High Court’s analysis, it is simply assumed – instead of demonstrated – that something as invasive as DNA analysis of an individual should simply be a part of routine criminal investigation; and when regard for individual rights against the overbearing power of the State is so low, it is but the smallest of steps to go from forcible DNA extraction to extracting statements through torture, and justifying it in the name of investigatory efficiency.

It is, indeed, quite evident that the Karnataka High Court was aware of the shortcomings of its analysis, because it repeatedly went from the passcode or the password to a phone not itself being a “document”, to how the data on the phone would still have to be proven under The Evidence Act – while completely ignoring the fact that the data on the phone that could be accessed as a result of having the passcode would, under any definition, fall within the ambit of Article 20(3). It was only by artificially creating this gap in chronology that the Karnataka High Court – and the Kerala High Court – could justify compelling an accused to allow access to the contents of their mobile phone to investigative agencies.

The judgments of the Karnataka and Kerala High Courts are particularly concerning, because at a time when mobile phones are becoming more and more an extension of our interior lives rather than simple accessories, criminal procedure law should be moving towards greater protection of mobile phone data rather than a position where the State has free access to it. In Selvi v State – a judgment ignored by both Courts (even though it was specifically cited before the Karnataka High Court) – the Supreme Court grasped this fundamental point when it held that one of the goals of Article 20(3) – read with Article 20(1) – was to protect an accused’s mental privacy from invasion by the State.

Lastly, it may perhaps be pointed out that the accused before the Kerala High Court was a particularly unsympathetic and unsavoury character, and the case itself was one where the accused’s lawyers – in all likelihood – were raising the Article 20(3) as a delay tactic. That may or may not be true, but it is crucial to remember that the purpose of criminal law safeguards is not to protect the “good guys”, but to protect everyone. The inevitable consequence of that is that, on occasion, the “bad guys” will also be able to take advantage of these procedural safeguards; but that is not a reason to abolish or dilute the safegards themselves.

The question of law in these cases will, of course, undoubtedly reach the Supreme Court at some point (for a deeper overview, see this blog post by Abhinav Sekhri, and this paper). It will be interesting to see how the top Court – that, with the brief exception of Selvi – has historically been hostile to Article 20(3) – will deal with the issue.

The Marital Rape Exception Case: Two Constitutional Issues

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

Marital Status as an Unreasonable Classification

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Would Striking Down the MRE Create a New Offence?

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

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

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

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

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

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

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


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

Guest Post: A Tale of a Commission and a Committee

[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)]


[This is a guest post by Krishnesh Bapat.]


On December 16, 2021, the counsel for an NGO named Global Village Foundation Public Charitable Trust mentioned before the Chief Justice of India a petition challenging the constitution of the Commission of Inquiry (‘Commission’) by the State of West Bengal under the Commission of Inquiry Act, 1952 (‘Act’). The Commission was constituted to inter alia enquire into whether the Pegasus Spyware was used to surveil individuals in West Bengal, and the role of State/Non-State actors in such surveillance. Based on this mentioning, the petition was listed the very next day, and the Court by order dated December 17, 2021 (‘17.12.21 17.12.21 Order’) stayed the proceedings of the Commission (which is headed by a former judge of the Supreme Court.) Incidentally, December 17, 2021, was also the last working day of the Court before winter vacations.

The 17.12.21 Order is as intriguing as it is minimalist. It records that on August 25, 2021, the counsel for the petitioner had sought a stay on the proceedings of the Commission to which the counsel for West Bengal (not the Commission) had stated that ‘no orders would be necessary’. Yet the Commission continued with the proceedings, and that the counsel for West Bengal submitted that they could not make a statement on behalf of the Commission (even though they did so on August 25, 2021). The Court held that the Commission should be impleaded as a party but also held that the proceedings of the Commission should remain stayed in the meanwhile.

The 17.12.21 Order raises several questions as it is not immediately clear why the Court stayed the proceedings. Media reports suggests that the Court stayed the Commissions proceedings because it has formed a committee of its own to investigate the use of Pegasus, and it did not want ‘parallel inquiries’. But the Court chooses not to record this in the 17.12.21 Order. Instead, it has prohibited the Commission from continuing with its proceedings without recording reasons, without hearing the counsel for the Commission, and at the behest of an NGO which does not seem to have any relationship with the case, its subject matter, or even the State of West Bengal.

To appreciate these concerns, a background of the Commission is necessary. The Commission was appointed by the State of West Bengal on July 26th, 2021 in the wake of disclosures by an international consortium of journalists that 300 Indian mobile telephone numbers were surveilled using spyware called ‘Pegasus’. These phone numbers included those used by ministers, opposition leaders, journalists and the family of the complainant who accused a former Chief Justice of India of sexual harassment. The consortium also reported that the Pegasus Spyware could be installed on a phone without any action on part of the victim, and once installed it can collect and transmit data, track activities such as browsing history, and control functionalities such as the phone camera. Notably, Pegasus is manufactured by an Israeli cyber-arms firm called the NSO Group, and according to the NSO Group itself, sold only to ‘vetted government(s)’.

While the State of West Bengal appointed the Commission to examine whether Pegasus was used in West Bengal, the Central Government dismissed the disclosures. Left remediless, several individuals, including those whose phones were forensically analysed, approached the Supreme Court seeking relief against the violation of their fundamental rights. The Court conducted its first hearing on August 5, 2021, and on October 27, 2021, formed a Technical Committee (‘Committee’) to inter alia examine whether the Pegasus Spyware was used on phones or other devices of the citizens of India. While the Committee has been directed to submit its report ‘expeditiously’, the Commission had to submit its report to the State Government within six (6) months from July 26, 2021, i.e. by January 26, 2022. Moreover, while the Committee has only recently issued a public notice inviting any citizen who may have felt that their phone was infected by Pegasus malware, the Commission issued a public notice as well as notices to several individuals, and has already conducted many hearings. Yet the Court chose to stay the proceedings of the Commission.

The stay raises the following concerns, detailed below –

Firstly, similar to the Supreme Court’s order staying the farm laws (discusssed here on this blog), the 17.12.21 Order does not provide any reason for staying the proceedings of the Commission. The Court could have imposed a stay only if it found the notification constituting the Commission to be ex-facie unconstitutional or that the balance of convenience entirely lied in favour of the petitioners or that it was unjust/unfair for the proceedings of the Commission to continue.  We do not know what compelled the Court to issue the 17.12.21 Order, and therein lies the problem. As pointed out previously on this blog, the effect of a minimalist order is that there is nothing one can engage with, disagree with, or critique, and this is deeply irregular because the authority of the Court is founded entirely on reason.

Secondly, assuming that the Court stayed the proceedings because it did not want a ‘parallel inquiry’, it is not clear why that should be the case. There is no legal bar on two bodies inquiring into allegations related to an overlapping set of facts (State of Karnata vs Union of India). Even criminal proceedings and department proceedings can proceed simultaneously (Captain M Paul Anothony vs Bharat Gold Mines Limited & Ors). Unlike both of those proceedings, neither the proceedings before the Commission nor those before the Committee have any teeth at least with respect to the report these bodies may submit. The Commission of Inquiry Act, 1952 does not impose any obligation on the government to act on the recommendations of the Commission, and the Supreme Court itself has held that the role of Commission of Inquiry is to merely enable the government to decide what administrative or legislative measures must be taken to eradicate the evil found (T.T Antony vs. the State of Kerala). Moreover, the Supreme Court has also held that the findings of the Commission of Inquiry are not binding on the Supreme Court (In Sham Kant vs. the State of Maharashtra). Similarly, and surely the report of the Committee is also not binding upon the Supreme Court. As an aside, the Committee’s report may not even be open to public scrutiny if past precedent is anything to go by.

Lastly, the Supreme Court should not have granted interim relief to the NGO without addressing whether the NGO had the locus standi (Soumitra Kumar Sen vs Shyamlal Kumar Sen). On the face of it, the NGO does not seem to have any connection with the disclosures made by the Pegasus Project. The NGO also was not summoned as a deponent by the Commission, and to the best of the knowledge of the author, it did not stand to gain/lose by the continuation of the proceedings. Thus, propriety required that the Court at the least detailed why the submissions of the NGO were accepted, especially since the State of West Bengal had questioned their bona fides.

As a result of the order of the Court, the Court-Appointed Committee is the only body examining the allegations raised by the petitioners who have reportedly been surveilled by the Pegasus Spyware. The report will be placed before the Court which will then examine the petitions. It is anybody’s guess when this will happen. If the Court had not stayed the proceedings of the Commission, it would have had the benefit of the finding of an enquiry conducted by a former Supreme Court justice. The public at large would have also gotten more details regarding the devious surveillance. But now the Commission has to wait until the next date of hearing (04.02.2022 – computer generated!) before it can seek a vacation of the stay order. Meanwhile, the victims of the Pegasus Spyware keep waiting for relief in the hope that their phones are not being surveilled.


Note: The author was part of the team of lawyers representing the petitioners who approached the Supreme Court seeking relief against the use of Pegasus Spyware on them.

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

[This is a guest post by Karan Gupta.]


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

Setting the context

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

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

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

Kanane and the tides of change

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

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

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

Separation of Powers and democracy deficit

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

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

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

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

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

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

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

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

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

Privacy beyond a closet (spatial sense)

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

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

Conclusion

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

Guest Post: A Critique of the Uttar Pradesh Population Control Bill

[This is a guest post by Samira Mathias and Shivani Vij.]


In an effort to control population growth, the Indian state of Uttar Pradesh has introduced the draft Population (Control, Stabilization & Welfare) Bill 2021, in an undoubtedly rushed manner. The poorly drafted bill, marred by numerous provisions which are violative of fundamental rights, is eerily reminiscent of the 1976 sterilization programme initiated by the then Congress government. Though the Bill does not mandate sterilizations, it incentivizes them with monetary benefits, and further corrodes reproductive autonomy by disincentivizing departures from the prescribed two-child norm through automatic ineligibility for government benefits. Pertinently, the Bill targets and has a disproportionate impact on the poor (to be discussed below).

By hastily resorting to harsher and unscientific methods of population control, the state is pre-determining a course of action for all people, instead of treating them as rational agents capable of making their own choices. Such a policy also amounts to an abdication of the state’s positive duties in facilitating the full enjoyment of human rights.

(i)  Violation of Reproductive Choice & Consent

The Bill purportedly aims to address population explosion by incentivizing compliance with the two-child norm, and disincentivizing departures. These disincentives include inter alia, denial of access to government welfare schemes and subsidies (Sec 12), limiting ration cards to up to four (units) (Sec 8(j)), ineligibility to contest elections (Sec 9), and bars on applying for government jobs (Sec 10) or promotions in government services (Sec 11). It further provides rewards for undergoing voluntary sterilization after two children, in the form of monetary assistance towards construction of houses, rebate for utilities, additional maternity and paternity benefits etc. (Sec 6) Moreover, specifically for individuals living Below the Poverty Line (BPL), having one child and undergoing voluntary sterilization draws promises of monetary benefits (Sec 7). 

The introduction of this system of incentives and disincentives obfuscates true choice, by exploiting the economic vulnerabilities and career aspirations of people. A more holistic assessment of consent needs to be conducted in light of the theory of adaptive preferences (Martha Nussbaum). The theory posits that in environments of deprivation or limited choices, individuals unconsciously change their preferences to reflect what they think is feasible. Thus, these individuals are not rendering free consent, but are merely expressing internalized inequalities of access to resources. The Bill exploits these inequalities in socio-economic status, disproportionately targeting families engaged in governmental service or living below the poverty line (BPL). The series of disincentives prescribed for violations of the norm, especially the ineligibility to avail of rations, and the disqualifications from appointments and promotions in government posts may prompt women to undergo abortions in order to avoid what are in effect penalties for having a third child. Fears of inadvertently violating the norm could motivate both men and women to undergo sterilizing or contraceptive procedures that are incompatible with their health or beliefs. The Bill also promises Rs 80,000 to a BPL family if they have a single male child and then undergo sterilization, or 1,00,000 for doing the same after the birth of a girl. These figures are more than twice the annual income fixed for a BPL family in Uttar Pradesh to receive rations.   Thus, under the guise of ‘voluntary’ sterilizations, the Bill through its economic penalties, in effect leaves no choice to families struggling to make ends meet or dependent on government supports to survive. This is a dangerous and insidious erosion of bodily autonomy, raising a serious constitutional challenge to Article 21 rights.

Sexual and reproductive autonomy are recognized as quintessential facets of privacy and thus the fundamental right to life guaranteed under Article 21 of the Constitution (KS Puttaswamy v. Union of India). Not only does the Bill restrict reproductive autonomy, but it does so in the most invasive way possible. While the State is empowered to impose limitations on privacy, it must do so in compliance with the four-part test laid down by the Supreme Court. Thus, the policy should pursue a legitimate aim, there should be a rational nexus between the restriction and the aim, it should be the least restrictive measure and, should strike a balance between the competing interests.

No evidence has been provided by the State for the need for the more restrictive measures of sterilization and a two-child norm, or even proof of their effectiveness in comparison to less restrictive measures such as providing for family planning methods, in order to achieve the aim of ‘population control’. Indeed, the Bill concedes to the existence of such less restrictive measures in Chapter V through an affirmation of the state’s duties to educate, encourage and support families with family planning.   The state should be focusing entirely on its positive role in promoting reproductive choices in line with the autonomy of persons, instead of eroding this autonomy by dictating choices for people.

Moreover, the Bill creates a peculiar impact on personal laws which permit polygamous marriages. Section 19 of the Bill provides for each woman in a polygamous marriage to have two children but allows the man in the marriage to have only two children in total across all his spousal relationships (Sec 19). If the husband violates his two-child quota, he will be subjected to the disbenefits prescribed for violators, but his wives and children will not be so penalized if each of them are compliant with the norm (Sec 18). Yet this simultaneously exists as a potential source of marital discord and indirectly restricts the reproductive rights of women in polygamous marriages Furthermore, there is potential for great confusion in the application of these sections. For instance, section 5 of the Bill promises benefits to single children on the basis of the status of the couple’s compliance with the norms (Sec 5). Yet, the provisions on polygamous marriages ascribe different statuses to both persons in the couple.

(ii) Attack on the right to livelihood & other constitutional rights

Another disproportionate impact is found on the rights to health and food of the poor, who depend on daily rations to survive. By providing for only four units of ration cards to seek compliance with its two-child norm (Sec 8(j)), the State violates these socio-economic rights which the Apex Court of India in Bandhua Mukti Morcha v. Union of India and PUCL v. Union of India settled as falling under the Directive Principles of State Policy and Art 21 rights of individuals. The National Food Security Act 2013, the statute enabling the provision of ration cards to the poor, was legislated with this very focus on ensuring a life with dignity by securing the right to food and basic necessities. Denying access to rations thus breaches Constitutional guarantees. By causing a disparate impact on the well-being of an economically struggling section of the population, the Bill denies the equal protection guarantee under Article 14 of the Constitution.

Worryingly, children’s rights to equality under Article 14 are also implicated. Single children are promised free education, healthcare, and insurance, as well as scholarships and preferences in admissions to higher educational institutions and jobs (Sec 5). This irrationally penalizes children for having siblings and represents an abdication of the state’s responsibility to look after the rights and well-being of all children.

Section 8(k) of the Bill further confers on the government the following power to enforce “Other disincentives as may be prescribed”. This is overly broad language, vesting the government with sweeping powers to revoke or disqualify persons from welfare schemes if they breach the two-child norm. There are no safeguards for how these disincentives can be determined and prescribed, and no provisions mandating that there be a rational nexus between the disincentive and procreation beyond the norm.

Indeed, a rational nexus is already absent within the prescribed disincentives. Persons who have more than two children after the Act comes into effect are barred from contesting government jobs and local body elections (Secs 9 & 10). The number of children a person has is in no way a reflection of their capacity and competence to fulfil these roles. Penalizing them for having more than two children automatically denigrates their family choices.

The Bill further mandates that existing local body electives and government employees undertake to have no more children (Sec 9(2) & 10(2)). There is no reason why the continuance of a government job should be contingent on the size of a family. The proposed law is effectively economically coercing couples into sterilizations and abortions.

(iii) Attacks on the integrity and dignity of persons: a means to an end

Individual dignity has been recognized as attainable only where liberty is seen as inhering in each individual, and equality as subsisting between all persons (para 189, Dr. D.Y. Chandrachud J., Indian Young Lawyers Association and Ors. v State of Kerala and Ors.). The state’s attempts to instrumentalize women’s reproductive capacities by fixing a cap on the number of children they can have, simultaneously reduces their human right to a state tool, while degrading women and children to ‘means’ to policy ends.

Further, instead of seeking to change regressive attitudes towards children on the basis of gender, the Bill monetizes them – offering couples living below the poverty line one lakh rupees if they have single child who is a girl, and eighty thousand rupees if the child is a boy (Sec 7).

The Bill also encourages a commodifying attitude towards children, through its approach to disabilities. Disabled children are not counted for the purposes of determining whether couples have breached the two-child norm (Sec 15). The Bill also enjoins the government to provide for reversing sterilizations, in cases where a child subsequently becomes permanently disabled (Sec 23(m)). These provisions place the worth of all children on their abilities and treat disabled children like inferior persons that do not discharge a quota. These are deeply disturbing attitudes that should not receive such implicit encouragement from the state.

Finally, the Bill’s choice of language where a ‘two child norm’ is defined as the ‘ideal size’ of a family implicitly belittles the choices of couples departing from such a norm. The Bill in effect promotes a homogenization of family structures, attacking the right of couples to make deeply personal choices about their family life.

(iv) Social context

The Bill has a disproportionate impact on the constitutional rights and dignity of women by ignoring the social context of childbirth in India and the fact that women may not have any real choice in family planning. Notable academician Professor Sandra Fredman (in her book Comparative Human Rights) has argued that any legislation affecting the reproductive autonomy of women must take into account the social and cultural dimensions around it. This is so because decisions regarding child-bearing and child-rearing are influenced by numerous social factors besides the choice of an individual, such as childcare leave, adequacy of personal resources etc. One such factor in India, is the pressure exerted on a woman to continue to have children until a male child is born. The desire for a male child has been and continues to be one of the primary causes of female infanticide and/ or feticide in many states of the country. In addition to this, marital rape, which is still not a punishable offence in India, also severely constrains choices of women and is one of the reasons for unplanned pregnancies. Amidst these peculiar social and cultural factors that surround childbirth, imposing a two-child norm and prescribing disincentives would mean that a man who forces his wife to have more children penalizes himself as well as his wife under the new law. Thus, the Bill, once implemented, would restrict the fundamental rights of women because they had more than the prescribed number of children – a decision which was never entirely within their control. The restrictions on their bodily autonomy, reproductive choice and life under Article 21 would thus be curtailed disproportionately to the legitimate aim of population control. The proposed law must therefore be viewed through the special lens of impacts on the constitutional rights of women in particular.

To steer clear of constitutional issues, the State must endeavour to restrict the right to reproductive autonomy with the least restrictive means. This can be done by empowering citizens to make responsible choices about family sizes by providing resources for better education and access to family planning for all households. This would enable informed choices about childbirth and promote attitudes where children are valued in and of themselves. The State should also align the initiatives on prevention of female infanticide and feticide with its policy on population control and address childbirth in the context of marital rape, which is not an offence under the Indian Penal Code. It is only when the focus shifts from coerced sterilizations and compliance with a strict two-child norm to the exercise of informed choice, that the State will be able to implement a sustainable policy of matching population numbers with resources within the ambit of permissible restrictions to fundamental rights.

Conclusion

In sum, the UP Draft Population Bill is profoundly problematic. It is constitutionally objectionable in the ways that it erodes privacy and reproductive autonomy, treats socio-economic rights like policy tools, and confers overly broad powers on the government. It is also incompatible with other existing laws, and disproportionately impacts already vulnerable sections of society, while constructing a system of incentives and disincentives devoid of rational links to policy goals.

 The Bill is invasive and denigrating of the choices of people, treating people as means to ends, and perpetuating regressive and damaging attitudes to women, children and the disabled. The state should be focusing on its positive duties, looking on the citizenry as partners in constructing a sustainable future. Sustainability, after all, depends on long-sighted, rational and cohesive solutions. A fragmented approach such as this fails to zero in on long term solutions – educating the people, equipping them to make responsible choices, promoting better attitudes towards the family and the human person, empowering the vulnerable, and advocating for comprehensive solutions to resource utilization that involve scientifically backed, environmentally sustainable choices as to use of resources. It is the need of the hour to take this ‘leap of reason’ from (forced) compliance with a restrictive policy to informed choice that will not only respect constitutional and moral rights, but be more sustainable for the future.