The Transformative Constitution

by Gautam Bhatia

128. See, e.g., Andrews v. Law Society of British Columbia, supra, discussing the non-discrimination clause of the Canadian Charter of Rights and Freedoms: ‘The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised bases of discrimination’ (dissenting opinion of Justice McIntyre). See also Law v. Canada (1999) 1 S.C.R. 497.

  129. For an account of the debates around the drafting of Article 15(1), which suggested, on more than one occasion, the preoccupation of the drafters with various strands of social feminism, see Sanjay Jain, ‘Guest Post: Women and the Constituent Assembly – II: The Framing of the Non-Discrimination Clause’, Indian Constitutional Law and Philosophy, https://indconlawphil.wordpress.com/2015/09/04/guest-post-women-and-the-constituent-assembly-ii-the-framing-of-the-non-discrimination-clause/, visited on 29 August 2017. The point remains, however, that whatever the intentions of the framers, ultimately it is their choice of words that matters. For example, when Jayaprakash Narayan proposed an additional non-discrimination clause dealing with possession of property and occupation, it was rejected with a note that restrictions on property could be imposed in the interests of the general public (with specific reference to gender-unequal personal laws), and that it might be important to prohibit women from pursuing certain occupations such as that of rickshaw-puller or labourer in the mines. See B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. IV 29–30 (New Delhi: Universal Law Publishing 2015). This is a classic example of what Dworkin calls ‘application intentions’, i.e., how the framers intended their words to be applied; however, as he points out, in the structure of constitutional interpretation, application intentions can well be at odds with the words that are actually used, when understood in their comprehensive textual, historical, and structural contexts. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press 1996). My argument here is that the framers’ application intentions, driven by their understanding of social feminism, were not, finally, reflected in the text of Articles 15(1) and 326.

  130. For a detailed list, see Kirti Singh, ‘Laws and Son Preference in India: A Reality Check’, United Nations Population Fund (2012), available at https://www.unfpa.org/sites/default/files/jahia-news/documents/publications/2013/LawsandSonPreferenceinIndia.pdf, visited on 25 June 2018.

  131. Sharanya Gopinathan, ‘Why Are Women Banned from Open Jail Benefits in India’, The Ladies Finger, 8 October 2017, available at http://theladiesfinger.com/open-prisons-india-women/.

  132. For another list of such discriminatory laws, and how challenges to them have failed in the courts, see Kapur and Cossman, ‘On Equality, Women and the Constitution’, supra.

  133. See, e.g., Nishita Gupta, ‘This Campaign Is Asking the Govt to Make Sanitary Napkins Tax-Free and We Say It’s About Time’, ScoopWhoop, https://www.scoopwhoop.com/this-campaign-is-asking-the-govt-to-make-sanitary-napkins-taxfree/#.0qelxk6em, visited on 30 August 2017. There is an argument, in this specific case, that the removal of the tax would not bring the price down. In any event, the tax was withdrawn in July 2018.

  134. A similar set of arguments would apply to the issue of menstrual leave, which was also in the news in the summer of 2017.

  135. Section 56, Code of Civil Procedure, 1908.

  136. Shrikrishna Eknath Godbole v. Union of India, 2016 SCC OnLine Bom 9559, ¶5.

  137. Inspector (Mahila) Ravina v. Union of India, W.P. (C) 4525/2014 (High Court of Delhi), ¶12.

  138. See, for example, the fascinating discussion by the Supreme Court of Canada in Symes v. Canada (1993) 4 S.C.R. 695, on whether the refusal to allow childcare expenses to be deducted as ‘business expenses’ for income tax purposes was gender discriminatory, since childcare expenses were predominantly borne by women. See also the discussion in British Columbia Public Service Employee Relations Commission, supra: British Columbia Public Service Employees Relations Commission v. BCGSEU (1999) 3 S.C.R. 3: ‘Under the conventional analysis, if a standard is classified as being ‘neutral’ at the threshold stage of the inquiry, its legitimacy is never questioned. The focus shifts to whether the individual claimant can be accommodated, and the formal standard itself always remains intact … [this] bars courts and tribunals from assessing the legitimacy of the standard itself… ’

  139. As the Canadian Supreme Court put it in Brooks v. Safeway Ltd, supra, the inequality is not created by nature, but by legislation (which, in the context under discussion, denied unemployment benefits for pregnancy). Justice Albie Sachs, dissenting in the South African case of Volks v. Robinson (2005) 5 BCLR 446, put the point even more clearly when he recommended that ‘patterns of gender inequality reinforced by the law be not viewed simply as part of an unfortunate yet legally neutral background’.

  140. In P. Vasantha v. Union of India (2001) IILLJ 843 (Mad), the High Court of Madras observed that ‘benign’ measures under Article 15(3) would have to be tested on the basis of whether they were designed to remedy the effects of past discrimination, and did not in themselves perpetuate stereotypes; in Government of Andhra Pradesh v. P.B. Vijaykumar, AIR 1996 SC 1648, the Supreme Court upheld gender quotas in recruitment on the basis that Article 15(3) was designed to improve women’s ‘participation’; similar reasoning was employed by the Kerala High Court in K.R. Gopinath Nair v. The Senior Inspector, AIR 1987 Ker 167, in upholding quotas in cooperative society committees (‘… prejudices, strong prejudices, existed against women for long periods of history …’); see also Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311. From other jurisdictions, see the judgement of the Lesotho Court of Appeal in Ts’epe v. Independent Electoral Commission and ors. (2005) LSHC 93 (Lesotho), where affirmative action in the form of election quotas was upheld on the basis of remedying past and existing institutional disadvantage, on the basis of statistics regarding representation. In a useful typology, Kapur and Cossman (‘On Equality, Women and the Constitution’, supra) distinguish between the ‘protective approach’ and the ‘corrective approach’ to Article 15(3).

  141. Joseph Shine v. Union of India, W.P. (Crl.) 194/2017. For an analysis, see Gautam Bhatia, ‘The Supreme Court Decriminalises Adultery’, The Indian Constitutional Law and Philosophy Blog (27 September 2018), available at https://indconlawphil.wordpress.com/2018/09/27/the-supreme-court-decriminalises-adultery/.

  142. Id., ¶62 (concurring opinion of Justice Chandrchud).

  143. Id., ¶12.2 (concurring opinion of Justice Malhotra).

  144. Id., ¶14 (concurring opinion of Justice Malhotra).

  2: Equality Before Law: Naz Foundation and Equal Moral Membership

  1. Parliament of India, Constituent Assembly Debates, 13 December 1946 (Speech of Pt. Jawaharlal Nehru), available at http://parliamentofindia.nic.in/ls/debates/vol7p10.htm; see also Tarunabh Khaitan, ‘Reading Swaraj into Article 15: A New Deal for the Minorities’, (2009) 2 NUJS Law Review 419.

  2. Naz Foundation v. NCT of Delhi, 160 DLT 277 (2009) (High Court of Delhi).

  3. S. 377, Indian Penal Code, 1860.

  4. Naz Foundation, supra, ¶130–31.

  5. Article 14, Constitution of India.

  6. Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in The Oxford Handbook of the Indian Constitution, supra, 699.

  7. Douglas Sanders, ‘Section 377 and the Unnatural Afterlife of British Colonialism in Asia’ (2009) 4(1) Asian Journal of Comparative Law 1, 7.

  8. Alok Gupta, ‘Section 377 and the Dignity of Indian Homosexuals’ (November 18, 2006) 41(46) Economic and Political Weekly 4817.

  9. Khandu v. Emperor, AIR 1925 Sind 286, ¶2; Khandu’s proposition that oral sex was an offence under S. 377 was affirmed in Khandu v. Emperor, AIR 1934 Lah. 261, although that case involved an individual having oral sex with a bullock; around the same time, the Judicial Committee of Sind held that penetrative anal sex amounted to an offence under S. 377 (Nowshirwan Irani v. Emperor, AIR 1934 Sind 206). In Naz Foundation, the petit
ioner argued that S. 377 was based on ‘Judeo-Christian moral and ethical standards which conceive of sex in purely functional terms’. Naz Foundation, supra, Petition, p. 8 (on file with the author).

  10. Lohana Vasantlal Devchand v. The State (1968) 9 CLR 1052, affirmed in Brother John Anthony v. State (1992) CrilLJ 818, which also held manual sex to fall within the scope of S. 377. Fellatio (albeit in a case of child sexual exploitation) was also held to constitute an offence in Childline India Foundation v. Allan John Waters, (2011) 2 SCC (Cri) 900.

  11. Ibid., ¶12.

  12. Ibid., ¶14.

  13. Fazal Rab Choudhary v. State of Bihar (1982) 3 SCC 9.

  14. The Malaysian Penal Code, which, like the Indian Penal Code, originated from the colonial British, also prohibits ‘carnal intercourse against the order of nature’, which it defines as ‘the introduction of the penis into the anus or mouth’. S. 377A, Malaysian Penal Code, 1976.

  15. Naz Foundation, supra, Petition, p. 30 (on file with the author).

  16. In the words of the High Court of Fiji, which struck down a nearly identically worded section, a sodomy law defined as ‘criminal … conduct essential to the sexual expression of the homosexual relationship’. Dhirendra Nadan v. State, Criminal Appeal Case Nos. HAA 85 & 86 of 2005 (High Court of Fiji).

  17. How this distinction could ever be enforced, or subjected to judicially manageable standards in a court of law, is of course another question.

  18. For example, in State of Kerala v. Kundumkara Govindan (1969) CriLJ 818), the High Court of Kerala held that the (forcible) insertion of a man’s penis between a woman’s thighs (i.e., anal rape) constituted an offence under S. 377; In Calvin John Francis v. State of Orissa (1992) I OLR 316, the High Court of Orissa held that oral rape was an offence under S. 377; see also Brother John Anthony v. State, supra (manual sex, which need not be between two men). These cases are not dispositive of the issue, since they are all cases of non-consensual sexual assault. Notably, however, courts in Singapore have found that consensual fellatio between men and women violates the (identically worded) S. 377 of their penal code. See, e.g., Annis bin Abdullah v. PP (2004) SCHC 52; PP v. Kwan Kwong Weng (1997) 1 SLR 697.

  19. Naz Foundation, supra, counter-affidavit of Respondent No. 5, B.P. Singhal, p. 15 (on file with the author).

  20. Article 14, Constitution of India.

  21. Section I, Fourteenth Amendment to the Constitution of the United States.

  22. See, e.g., Chiranjit Lal Choudhry v. Union of India, 1950 SCR 869.

  23. See, e.g., Tigner v. Texas, 310 U.S. 141 (1940) (Supreme Court of the United States). H.M. Seervai, Constitutional Law of India, Vol. 1, 453 (4th ed., New Delhi: Universal Law Publishing 2015).

  24. Ibid. The phrase ‘class legislation’ is directly borrowed from nineteenth-century US legal jurisprudence, and refers to laws that favour the interests of a particular class of people, rather than the public as a whole. See Melissa L. Saunders, ‘Equal Protection, Class Legislation, and Colorblindness’ (1997) 96 Michigan Law Review 245.

  25. State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284. For a chronology of how the ‘rational nexus’ test as the concrete exposition of ‘reasonable classification’ came to be established in Indian law, see P.K. Tripathi, Some Insights into Fundamental Rights 52–58 (University of Bombay 1971).

  26. Joseph Tussman and Jacobus tenBroek, ‘The Equal Protection of Laws’ (1949) 37(3) The California Law Review 341, cited in State of Gujarat v. Shri Ambica Mills Ltd., 1974 SCR (3) 760.

  27. For a more recent treatment of the kinds of questions that may arise in such situations (albeit in the context of the proportionality test applied by courts while reviewing legislation for compatibility with human rights), see Cora Chan, ‘Proportionality and the Invariable Baseline Intensity of Review’ (2013) 33(1) Legal Studies 1.

  28. In the Indian context, this was pointed out by P.K. Tripathi, who framed it as a question of ‘the quantum of disparity’ that was consistent with equality. Tripathi, Some Insights into Fundamental Rights, supra, 67.

  29. That is, if there were no arguments from either side, would the court uphold or invalidate a particular legislative classification?

  30. Tussman and tenBroek, supra, 354.

  31. Ibid., 356.

  32. Ibid.

  33. Ibid., 358. Tussman and tenBroek also proposed a fifth issue—whether the equal protection clause protected certain basic rights—which I do not deal with here.

  34. Chiranjit Lal Chowdhury, 1950 SCR 869, ¶67 (majority opinion of Justice Mukherjea); see also, ¶18 (concurring opinion of Justice Fazl Ali).

  35. State of Gujarat v. Shri Ambica Mills (1974) 4 SCC 656.

  36. Supdt. and Remembrancer of Legal Affairs v. Girish Kumar Navalakha (1975) 4 SCC 754.

  37. State of Bombay v. F.N. Balsara, 1951 SCR 682, holding that an exemption for armed forces from a prohibition law passed the scrutiny of Article 14 (and reversing the High Court judgement on this point), on the simple assumption that interfering with the armed forces’ ‘unique way of life’ might impact their morale; State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284, striking down a law that set up special courts for the purpose of ‘speedier trials of certain offences’, without any further stipulation on which offences; Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435, upholding a similar law where the purpose of special courts was to try crimes that affected public tranquillity and public order; Budhan Choudhry v. State of Bihar, 1955 SCR (1) 1045, upholding S. 30 of the Code of Criminal Procedure; Ram Krishna Dalmia v. S.R. Tendolkar, 1959 SCR 279, upholding the establishment of a Commission of Enquiry to investigate the affairs of certain companies.

  38. For a restatement, see In re Special Courts Bill, (1979) 2 SCR 348. For a general defence of his approach in common law, grounded in institutional legitimacy and competence, see Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) Cambridge Law Journal 174.

  39. See, infra, Section II(C).

  40. Article 15(1), Constitution of India.

  41. Starting, of course, with the famous Brown v. Board of Education, 347 U.S. 483 (1954).

  42. Kathi Raning Rawat, supra, ¶7.

  43. In 2007, a two-judge bench of the Supreme Court appeared to incorporate the US principle of ‘strict scrutiny’ for certain kinds of classifications, into Article 14. Opposition to this is based on the premise that the Constitution had already codified two tiers of scrutiny, viz., ‘rational review’ under Article 14, and non-discrimination on six specific grounds, under Article 15. See, e.g., Vikram Raghavan, ‘Navigating the Noteworthy and Nebulous in Naz Foundation’ (2009) 2 NUJS Law Review 397, 414–15.

  44. Andrews v. Law Society of British Columbia (1989) 1 S.C.R. 143 (Supreme Court of Canada).

  45. See, e.g., Susanne Baer, ‘Equality’ in The Oxford Handbook of Comparative Constitutional Law 982, 986 (Michael Rosenfeld and András Sajó ed., OUP 2012): ‘In the history of equality jurisprudence, the focus on rationality has however served to weaken the claims for equal treatment.’

  46. This included ‘strict scrutiny’ for racial classifications (Adarand Constructors v. Pena, 515 U.S. 200 [1995]), and ‘intermediate scrutiny’ for sex-based classifications (United States v. Virginia, 518 U.S. 515 [1996]).

  47. Harksen v. Lane, 1997 (11) BCLR 1489 (Constitutional Court of South Africa). But, see, Pierre de Vos, ‘Substantive Equality after Grootboom: The Emergence of Social and Economic Context as a Guiding Value in Equality Jurisprudence’, (2001) 2001 Acta Juridica 52, 61, for a critique.

  48. Chiranjit Lal Choudhry, supra, ¶9 (concurring opinion of Justice Fazl Ali).

  49. State of West Bengal v. Anwar Ali Sarkar, supra, ¶44 (majority opinion of Justice Mukherjea) and ¶87 (concurring opinion of Justice Aiyar).

  50. E.P. Royappa v. State of Tamil Nadu, 1974 SCR (2) 348.

  51. Catherine A. MacKinnon, ‘Sex Equality under the Constitution of India: Problems, Prospects, and Personal Laws’ (2006) 4(
2) International Journal of Constitutional Law 181, 188.

  52. Seervai, Constitutional Law of India, Vol. 1, supra,437.

  Ruma Pal, ‘Judicial Oversight or Overreach’ (2008) 7 SCC Journal 9.

  53. See, e.g., Maneka Gandhi v. Union of India (1978) 2 S.C.R. 621; Ajay Hasia v. Khalid Mujib (1979) 3 S.C.R. 1014; Air India v. Nargesh Meerza (1982) SCR (1) 438.

  54. See Khaitan, ‘Equality’, supra, 702; see also T.M. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’ in Supreme But Not Infallible 193 (B.N. Kirpal et al. eds., OUP 2004); B.N. Srikrishna, ‘Skinning a Cat’ (2005) SCC Journal 3.

  55. Shayara Bano, supra, articulating ‘arbitrariness’ in the language of proportionality.

  56. Dipak Sibal v. Punjab University, 1989 (2) SCC 145.

  57. Ibid., ¶20.

  58. See, e.g., Seervai’s critique of Kathi Raning Rawat: Seervai, Constitutional Law of India, supra, 516.

  59. See e.g., Dr Pradeep Jain v. Union of India (1984) 3 SCC 654, where the Court examined affirmative action policies under Article 14 on the assumption that the default purpose of any admission policy was ‘merit’.

  60. See, e.g., Nagpur Improvement Trust v. Vithal Rao, 1973 SCR (3) 39.

  61. In Anwar Ali Sarkar, Justice Das pointed out that ‘the object by itself cannot be the basis of the classification’; State of West Bengal v. Anwar Ali Sarkar, supra, ¶62 (partially concurring and partially dissenting opinion of Justice Das). Seervai agrees (Seervai, Constitutional Law of India, supra, 495). However, there is no explanation for this; to simply say, as Seervai does, ‘the object of the statute cannot furnish the differentia because the object and the differentia are distinct and separate’ (ibid.) is tautological. Seervai’s own analysis of the Supreme Court’s judgement in R.K. Garg v. Union of India (1981) 4 SCC 675 faults the impugned classification as ‘reeking with immorality’, which seems to speaks to legislative purpose (ibid., 496).

  62. See, for example, Subramanian Swamy v. Director, CBI (2014) 8 SCC 682, where the Court struck down a legal provision that prohibited corruption investigation against high-level government officials without prior sanction, ostensibly on the basis of illegitimate purpose, but gave no further explanation.