The use of the connector ‘in particular’ has allowed the Canadian Supreme Court to jettison the classification test. Instead, it has developed an extensive jurisprudence of ‘analogous grounds’ under the equal protection part of the clause, which do not fall within the listed grounds, and on the basis of which laws are subjected to a broad proportionality review.140 Similarly, S. 9(1) of the South African Constitution reads:
Everyone is equal before the law and has the right to equal protection and benefit of the law.141
S. 9(3) adds:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.142
Inspired by, and similar to, the Canadian Charter, the South African Constitutional Court conducts a proportionality review for discriminatory conduct based on listed or analogous grounds, and a rationality review for other cases of claimed equality violations.143Broadly, these constitutions are structured similar to India’s, but with a few important differences, of course: an equal protection clause followed by a non-discrimination, listed-grounds clause, which may or may not be part of the same sentence. The Canadian and South African courts have used the phrases ‘in particular’ and ‘including’ to open up the protection of non-discrimination, respectively, to ‘analogous grounds’, the analysis of which now forms an integral part of their equality/non-discrimination jurisprudence. I have argued that the Indian Constitution provides a model for our courts to do the same under Article 14’s equal protection guarantee, and that such a reading is structurally and historically justified, and true to the Constitution’s transformative purpose.
It was this reading that Naz Foundation resurrected after fifty-nine years of stillbirth. That is what makes it a truly transformative decision.
One last point remains: Naz Foundation was extremely careful in articulating the underlying basis of the Article 15(1) grounds as a combination of group disadvantage and infringement of personal autonomy. This was not the only option open to the Court. In Canadian law, for instance, the relevant basis at present is ‘immutability’144 (attributes that are either unchangeable [age] or changeable only at great and unjustified cost [religion]), while South Africa focuses on ‘dignity’.145 Both these approaches have been criticized: immutability, because it traps individuals into categories in terms of which they may not wish to define themselves,146 and is insufficiently sensitive to how ‘grounds’ of non-discrimination have been the sites of disadvantage and exclusion; and dignity, for its conceptual emptiness.147Naz Foundation avoided the temptation of both these intuitive approaches to ‘analogous grounds’. Rather, it kept the focus on a two-pronged approach: defining the basis of non-discrimination as remedying group disadvantage by identifying the sites on which that disadvantage takes place on the one hand, while specifying that the manner of disadvantage must be linked to personal autonomy on the other. Dignity, while discussed extensively, was part of a broader enquiry into vulnerability and disadvantage.148 And it is this approach, I have attempted to show, which was ultimately true to the Constitution’s text, structure, history, and transformative purpose.149
IV. The Aftermath: Koushal and Rajbala
On 11 December 2013, in Suresh Kumar Koushal v. Naz Foundation,150 a two-judge bench of the Supreme Court reversed the Delhi High Court’s verdict. Section 377 was reinstated as it had been before Naz Foundation was decided.
The judgement in Koushal, authored by Justice G.S. Singhvi, is difficult to interpret. This is primarily because its ninety-eight pages consist almost entirely of recapitulating the submissions of counsel and the position of law, with neither an analysis nor a definite finding on most of the issues before the Court.151 With respect to Articles 14 and 15, what passes by way of analysis is found in paragraph 42:
Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment …152
In concluding that Section 377 merely defined an offence, and by virtue of that was automatically shielded from scrutiny under Articles 14 and 15, the Koushal bench evidently failed to engage with any of the arguments advanced by the High Court on issues of impact and effect under Article 14, the link between targeting conduct and targeting groups, rigorous scrutiny for analogous grounds, and the anti-stereotyping principle.
Two years later, when two Indian states passed laws requiring a minimal educational qualification (among other things) for contesting local government elections, the Supreme Court had the chance, once again, to advance Naz Foundation’s vision of equality and non-discrimination. The challenged laws disproportionately affected women and disadvantaged castes, who for myriad reasons had been unable to access primary education. Here was an ideal opportunity to apply standards of impact and effect, anti-stereotyping, and exclusion from core public goods. Furthermore, given that the challenge was to an electoral law, and therefore to the very basis of the system that granted laws their presumptive legitimacy,153 it was a chance to apply rigorous scrutiny under Article 14. Once again, however, in Rajbala v. State of Haryana,154 the Supreme Court declined the opportunity, upholding the law under an Article 14 rational review standard, simply by making the unsubstantiated observation that ‘it is only education which gives a human being the power to discriminate between right and wrong, good and bad’.155
Koushal and Rajbala mark a temporary closure of the transformative potential of Articles 14 and 15(1) of the Constitution. In both cases, the Supreme Court failed to engage at all with the arguments in Naz Foundation. Consequently, the High Court’s transformative reasoning in Naz Foundation exists, at present, in a strange limbo: the judgement itself was reversed, but its reasoning has yet to be frontally met and addressed by the Supreme Court.
V. Conclusion: Naz Foundation and the Future of Article 14
The Constitution of India is one of the great emancipatory charters, lifting, as it does, from the status of wretchedness and subordination – communities, castes, tribes, and women – to full Citizenship.
Outline of Arguments, Voices against 377 (Respondent No. 8), Naz Foundation v. NCT of Delhi (on file with the author)
As early as 1952, Justice Vivian Bose expressed his unease at the direction the Constitution’s equal protection clause was taking. Concurring in State of West Bengal v. Anwar Ali Sarkar, he formulated his own understanding of Article 14, questioning:
… whether the collective conscience of a sovereign democratic republic can regard the impugned law … as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be.156
What was ‘a democracy of the kind we have proclaimed ourselves to be’? In Naz Foundation, Respondent No. 8 (Voices Against 377) proposed an answer to this question: a democracy that abhorred subordination, and promised ‘full citizenship’ to all. It was an answer that the High Court accepted.
Let us go back to the four words with which we began the chapter, the words that constituted the heart and soul of Naz Foundation: inclusiveness, discrimination, equality, dignity. If the constitutional guarantees of Article 14 (equal protection) and Article 15 (non-discrimination) meant anything, the Court held, they meant that the Constitution stood as a bulwark against laws and policies that excluded individuals or groups, or denied and undermined their dignity. This was what it meant for the Constitution to be a charter of emancipation, and this was what was meant by the promise of full citizenship. Or, to put it another way, ‘equal moral membership’ of the polity.
The High Court’s reason
ing, however, had consequences beyond Naz Foundation. In its written submissions before the Court, the Union of India expressed the worry that if homosexuals were to be treated as a protected class for the purposes of non-discrimination law, ‘then in India there will be lakhs of minorities, men who are bald, men who suffer from other ailments like old age problems, suffer from leprosy or other ailments’.157 Keeping aside the example of ‘bald men’ as a frivolous one,158 the answer to the Union’s concern is, ‘Yes, and that is precisely the point!’ The ‘analogous grounds’ reasoning would open the door for similar challenges to discriminatory laws that were not covered by Article 15(1): age, physical or mental disability (in fact, the Union’s invocation of leprosy is particularly poignant, because of the widespread discrimination—codified in laws—against people suffering from this disease),159 and perhaps even economic class.160 It would also ensure that the equality and non-discrimination clauses remained dynamic and forward-looking, able to identify and redress discrimination as it arose in a rapidly changing world.
Interestingly, the reasoning in Naz Foundation was echoed by the Supreme Court in July 2013, just a few months before Koushal. In State of Maharashtra v. Indian Hotel & Restaurants Association,161 the Supreme Court struck down a ban on ‘bar dancing’ that was restricted to hotels below the ‘three-starred’ category. Rejecting the State’s argument that lifting the ban would lead to moral corruption and exploitation of women, the Court held that the sole basis of the classification was the ‘classes of persons’ who frequented the establishments:
We are of the firm opinion that a distinction, the foundation of which is classes of the establishments and classes/kind of persons who frequent the establishments and those who own the establishments can not be supported under the constitutional philosophy so clearly stated in the Preamble of the Constitution of India and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender … Taking away of these rights of equality by any legislation would require clear proof of the justification for such abridgment.162
What we see here, in proto-form, are the arguments advanced by the High Court in Naz Foundation, applied to the grounds of economic status. The Supreme Court held that classification motivated solely by assumptions about the moral character (or otherwise) of poor people failed on the legitimate purpose grounds, because it was opposed to the ‘constitutional philosophy’ stated in the Preamble (‘equality of status and opportunity and the dignity of the individual’).163 Crucially, the Court invoked the specific grounds of Article 15(1) to substantiate its claim, and to hold the legislature to a standard of ‘clear proof of justification’ under Article 14. While the Court did not develop these propositions in as much detail, the power and force of the argument is evident. However, it did note that the State’s arguments were based on stereotypes instead of on empirical data—another key link of the reasoning in Naz Foundation.
In sum, therefore, Naz Foundation struck a powerful blow for the liberation of a group that had long been stigmatized and discriminated against, in public and in private. It also did something more: through its focus on non-discrimination, equality, inclusion, and dignity, it also liberated Indian equality jurisprudence from its six-decade-old fetters of ‘intelligible differentia’ and ‘rational nexus’. From ‘equals must be treated equally and unequals unequally’ to ‘inclusion’, ‘dignity’, and ‘equal moral membership’; from a vision of equality bounded in a nutshell to infinite space. The Delhi High Court revived the hopes that K.T. Shah and B.R. Ambedkar nurtured while formulating the equal protection and non-discrimination clauses, and restored to them Nehru’s ‘magic of the human spirit’.
Will the High Court’s judgement itself be revived by the ‘intelligence of a future day when a later decision … correct[s] the error’164 into which the Koushal Court was betrayed? Only time will tell.
Postscript—Navtej Johar
The intelligence of a future day was not too long in coming. On 6 September 2018, a few months shy of five years since Koushal, a Constitution Bench of the Supreme Court overturned that judgement, and largely restored the judgement of the Delhi High Court in Naz Foundation. In Navtej Johar v. Union of India, Section 377 was read down to exclude consensual same-sex relations between adults.165
While the judgements of the Chief Justice and Justice Nariman respectively proceeded on the bases of individual choice and the manifest arbitrariness of Section 377, the concurring opinions of Justices Chandrachud and Malhotra have some resonance with the arguments advanced in this chapter. Justice Chandrachud, for example, explicitly agreed with the shortcomings of the classification standard, and indicated that a disadvantage-based interpretation of Article 14 signalled a possible way forward.166 And Justice Malhotra argued that legislation discriminating on the basis of an ‘intrinsic and core trait’ of an individual was, ipso facto, a breach of Article 14.167 Although the Justices did not go further down this road in Navtej Johar, the foundations for future transformative constitutionalism around the Articles 14/15 axis have now been laid.
3
Equality of Opportunity: N.M. Thomas, Group Subordination, and the Directive Principles
I am glad that the draft Constitution has … adopted the individual as its unit.
B.R. Ambedkar, speech in the Constituent Assembly, November 1948
We cannot have equality because in trying to attain equality we come up against some principles of equality.
Prime Minister Nehru, speech in Parliament on the First Amendment, May 1951
‘EQUALITY,’ AS THE SUPREME Court reminds us every few years, ‘forbids class legislation, but does not forbid reasonable classification.’ Intuitively, this makes sense—a Constitution that places the individual at its heart cannot permit laws that allocate benefits and burdens based on class. Articles 15(1), 16(1), and 16(2)—the concrete embodiments of the Constitution’s Equality Code—substantiate this view. Article 16(1), for instance, guarantees to all citizens the ‘equality of opportunity … in matters relating to employment or appointment to any office under the State’, while Article 16(2) prohibits discrimination in State employment on grounds of ‘religion, race, caste, sex, descent, place of birth … [or] residence’. Reading Articles 16(1) and (2) together, we derive a vision of equality that mandates ‘[State] indifference to ascriptive characteristics’1 in public employment. Or, in other words, a person’s race, caste, class, etc. cannot feature in decisions about public employment. In some quarters, this is called ‘colour-blind equality’.2
A closer look at the constitutional scheme, however, complicates matters. Article 16(4) states:
Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Article 16(4) is mirrored in Article 15(4), which authorizes the State to make provisions for ‘the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’. But if equality’s slogan is ‘no class legislation’, then Articles 15(4) and 16(4), which explicitly use the word ‘class’, seem to be pulling in an entirely different direction. Are these provisions departures from the constitutional vision of equality? Is their existence testimony to the fact that in a deeply riven society, there must be some limited compromise with equality in order to guarantee meaningful social justice? Or is their presence a signal for us to revise our initial presumption about the very meaning of ‘equality’ under the Constitution?3
The history of the Supreme Court’s ‘reservations’ jurisprudence is the history of a struggle between two competing visions of equality. In 1975 (State of Kerala v. N.M. Thomas), the Court decisively embraced one vision and rejected the other. More than forty years after, however, the transformative character of that judgement has yet to be articulated. That is the task of this chapter.4
> I begin with a survey of a few of the Supreme Court’s initial judgements on Articles 15 and 16 (I). In its first two decades, the Court held that Articles 15(4) and 16(4), which allowed class-based affirmative action, were constitutionally mandated ‘exceptions’ to the Equality Code. In State of Kerala v. N.M. Thomas,5 however, a narrowly divided Supreme Court reversed that view. In their complementary majority opinions, Justices Mathew and Krishna Iyer advanced a vision of equality according to which individual disabilities were embedded in class identity and, consequently, within a set of social hierarchies that the Constitution’s Equality Code was created to surmount (II).
After discussing the judgement(s) in N.M. Thomas, I articulate and defend the transformative understanding of equality that emerges out of a combined reading of the majority opinions (III). The majority, I argue, grasped the insight that in India, ‘differential access to life chances corresponded in large measure to membership in different communities’.6 To take community membership into account, therefore, was not to depart from the principle of individual equality, but to abide by it in its deepest sense.
I then contend that N.M. Thomas was also transformative in a second, important way (IV). It was the first judgement to articulate the role of Part IV of the Constitution, i.e., the Directive Principles of State Policy, as a system of framework values that gave life to the abstract concepts outlined in the Fundamental Rights chapter. In conclusion, I argue that the vision of equality articulated in N.M. Thomas had, and continues to have, the potential to transform how the law addresses subtle and often hidden social hierarchies (V).
I. ‘Caste-Blindness’ and the Early Supreme Court
The concept of reservations did not spring forth from a vacuum at the time of the framing of the Constitution. At the turn of the twentieth century, there was increasing awareness that an individual’s opportunities for educational, economic, and social advancement were heavily determined by her membership of different social groups, and, in particular, by her caste. Influenced by the writings of the radical egalitarian thinker Jyotirao Phule, the ruler of the princely state of Kolhapur (Shahuji Maharaj) first introduced affirmative action in 1902, reserving 50 per cent of government and administrative posts for backward castes. Setting out his justification for reservations, Shahuji noted that despite an active attempt to foster the education of all classes in the state, there had been a lack of success because ‘the rewards for higher education are not sufficiently widely distributed’.7 The phrasing is noteworthy because it reflects Shahuji’s acknowledgement of the structural and institutional barriers that prevented an equitable distribution of opportunities right from the beginning of life. Following Kolhapur’s example, by the 1920s, numerous princely states, as well as provincial legislative councils under colonial rule, had instituted quota systems for admission into educational institutions and for recruitment to government posts.8 These quotas were aimed at ensuring the representation of ‘backward classes’ in spaces that they were unable to access.
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