63. As the Court noted, a strange feature of the case was that two ministries, viz., the Ministry of Home Affairs and the Ministry of Health and Welfare, took opposite stands on the issue.
64. Naz Foundation, supra, ¶24. See also, Written Submissions of the Union of India, pp. 15–21 (on file with the author).
65. Naz Foundation v. NCT, supra, Written Submissions of the Union of India, pp. 81–86 (on file with the author).
66. Naz Foundation, supra, ¶¶61–74.
67. See, e.g., Counter-Affidavit of Respondent No. 8 (Voices Against 377), Annexure R6 (2006 Delhi Declaration), on file with the author.
68. Naz Foundation, supra, ¶¶62–66.
69. Ibid., ¶70.
70. Ibid., ¶71.
71. Ibid., ¶92.
72. The distinction between a relationship of rationality (that the classification cannot be unconnected or irrelevant to the object) and a relationship of reasonableness (which also examines the ‘severity’ of the restriction—a question of degree) is brought out by P.K. Tripathi. See Tripathi, Some Insights into Fundamental Rights, supra, 95.
73. See, e.g., Bernhard Schlink, ‘Proportionality’ in The Oxford Handbook of Comparative Constitutional Law, supra,718.
74. See, e.g., the equality doctrine of the Federal Constitutional Court of Germany, discussed in Susanne Baer, ‘Equality: The Jurisprudence of the German Constitutional Court’ (1998–99) 5 Columbia Journal of European Law 249, 263; see also Alekseyev v. Russia, Application Nos. 4916/07, 25924/08 and 14599/09, European Court of Human Rights.
75. R v. Oakes (1986) 1 S.C.R. 103 (Supreme Court of Canada).
76. S v. Makwanyane, 1995 (3) SA 391 (Constitutional Court of South Africa).
77. Teri Oat Estates v. UT Chandigarh (2004) 2 SCC 130; see also Tarunabh Khaitan, ‘Beyond Reasonableness: A Rigorous Standard of Review for Article 15 Infringement’ (2008) 50(2) Journal of the Indian Law Institute 180.
78. Aharon Barak, ‘Proportionality (2)’ in The Oxford Handbook of Comparative Constitutional Law, supra, 738–48.
79. See, e.g., ibid., 734. For a detailed, conceptual analysis of how the standard may be applied in human rights cases, see Cora Chan, ‘Proportionality…’, supra.
80. Anuj Garg v. Hotel Association, AIR 2008 SC 663.
81. Naz Foundation, supra, ¶107.
82. Following the same method, the Court of Appeal of Hong Kong said it would ‘scrutinize with intensity whether the difference in treatment is justified’. Secretary for Justice v. Yau Yuk Lung Zigo, FACC No. 12 of 2006 (Court of Final Appeal of the Hong Kong Special Administrative Region).
83. Naz Foundation, supra, ¶111.
84. For a more detailed exploration of ‘personal autonomy’, see Khaitan, ‘Reading Swaraj into Article 15’, supra, 422–423.
85. Naz Foundation, supra, ¶113.
86. One year before Naz, and one year after Anuj Garg, a proto-version of this argument was made by Tarunabh Khaitan: ‘… it is an extremely plausible proposition that unspecified grounds that are analogous to those protected under article 15(1) … are similarly protected under article 14’. Khaitan, ‘Beyond Reasonableness’, supra, 203.
87. Naz Foundation, ¶13. See also Law Commission of India, 42nd Report, ¶16.126 (1971); Subsequently, in its 172nd Report, the Law Commission recommended the repeal of S. 377.
88. Norris v. Ireland (1988) ECHR 22 (26 October 1988).
89. National Coalition for Gay and Lesbian Equality v. The Minister of Justice, 1999 (1) SA 6 (CC).
90. Lawrence v. Texas, 539 U.S. 558 (2003); note, however, that Lawrence turned upon the fact that what was at stake was a ‘fundamental liberty interest’ of the petitioner.
91. Naz Foundation, supra, Additional Written Submissions on Behalf of Petitioner, p. 1 (on file with the author). The petitioner made this argument in the context of the right to privacy, but, as the Court’s judgement shows, the form of the argument largely overlaps with Article 14.
92. Ibid., p. 2. The other judgements that the petitioner relied upon were all in the context of a broader proportionality enquiry.
93. In Dudgeon v. The United Kingdom (1982) 4 EHRR 149, the European Court of Human Rights held that giving effect to public morality was a legitimate State purpose, although in the circumstances of the case, it was overridden.
94. See, e.g., Naz Foundation, supra, Affidavit of the Union of India (on file with the author).
95. Naz Foundation, supra, ¶92.
96. Ibid., ¶80. The reasoning echoed that of the High Court of Fiji, which had struck down Fiji’s anti-sodomy law as unconstitutional: Dhirendra Nadan v. State, HAA 85&86 of 2005.
97. The argument was made by Voices Against 377, relying upon the Constitutional Court of South Africa. Naz Foundation, supra, Outline of Arguments of Respondent No. 8, p. 9 (on file with the author).
98. Naz Foundation, supra, ¶80.
99. R v. M (C), 41 C.R. (4th) 134 (1995).
100. Naz Foundation, supra, ¶79. Although the Court’s discussion of constitutional morality was located in the part of its judgement dealing with Article 21 (privacy) of the Constitution, its application to whether there existed a ‘compelling State interest’ that justified invading privacy suggests that it would apply equally to the question of whether there existed a ‘legitimate State interest’ under Article 14.
101. Article 25(1), Constitution of India.
102. Article 29, Constitution of India.
103. Articles 19(1)–19(3), Constitution of India.
104. See, e.g., Schlink, ‘Proportionality’, supra, 723: ‘The legitimacy of a legislative measure … follows from the Constitution alone’. Importantly, while the parties before the Court had linked S. 377’s class hostility with the arbitrariness test (see, e.g., Counter-Affidavit of Respondent No. 8, Voices Against 377, p. 23 [on file with the author]), the Court drew a stronger, and more defensible, connection with illegitimate purpose.
105. Lawrence v. Texas, 539 U.S. 558 (2003).
106. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 (12) BCLR 1517, ¶108.
107. See, e.g., Edwin Cameron, ‘Sexual Orientation and the Constitution: A Test Case for Human Rights’ (1993) 110 South African Law Journal 450, 452.
108. Ryan Goodman, ‘Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics’ (2001) 89(3) California Law Review 643; cited in Naz Foundation, supra, ¶49.
109. Naz Foundation, supra, Affidavits placed before the High Court by Respondent No. 8 (on file with the author); discussed in ¶¶21–22 of the judgement. A clarification is necessary: Respondent No. 6, viz., Joint Action Council, Kannur, argued, ‘wrongful use of a law does not invalidate it’. (Naz Foundation, supra, Counter-Affidavit of R6 (on file with the author). This is true: the constitutionality of a law will not be affected by executive abuse; the remedy lies against the specific instance of abuse. However, it was not the petitioner and Respondent No. 8’s case that S. 377 was being abused by the police; rather, as the petitioner pointed out in its Rejoinder to R6, it was that the language of S. 377 (and its judicial interpretation) did not preclude or forbid the police from doing what they were doing to homosexuals and transgender people. Naz Foundation, supra, Petitioner’s Rejoinder to Respondent No. 6’s Counter-Affidavit, p. 459 (on file with the author). It was in this sense that the law’s ‘impact’ was discussed.
110. Naz Foundation, supra, ¶94.
111. Khandige Sham Bhat v. The Agricultural Income Tax Officer, 1963 SCR (3) 809.
112. Susanne Baer, ‘Equality: The Jurisprudence of the German Constitutional Court’ (1998–99) 5 Columbia Journal of European Law 249, 253.
113. Naz Foundation, supra, Written Submissions of the Petitioner, ¶119 (on file with the author).
114. See, e.g., State of Kerala v. N.M. Thomas, 1976 SCR (1) 906.
115. For instance, in his landmark book, Professor P.K. Tripathi calls Articles 15 to 18 the ‘supporting provisions’ for Article 14. Tripathi, So
me Insights into Fundamental Rights, supra, 50.
116. It is scarcely surprising that Articles 14 and 15 were considered together by the Court.
117. Section I, Fourteenth Amendment to the Constitution of the United States of America.
118. See, e.g., Nebbia v. New York, 291 U.S. 502 (1934): ‘And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.’ Ibid., p. 526. See also United States v. Carolene Products, 304 U.S. 144 (1938).
119. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II 118 (New Delhi: Universal Law Publishing 2015).
120. Ibid., 171.
121. Ibid., 173.
122. Another indication of the shift can be gleaned from the fact that in the Commonwealth of India Bill, a proto-Constitution drafted in 1925 under the leadership of Annie Besant, the right to equality before law makes its first appearance as an explicit rule of law guarantee: ‘All persons residing within the Commonwealth, whether permanently or temporarily, are equal before the Law, and shall be tried for similar offences in Courts of the same order and by Judicial Officers of the same grade.’ (Commonwealth of India Bill, 1925, http://cadindia.clpr.org.in/historical-constitutions/AVsOrUsy7SXahIyw4igo--the-commonwealth-of-india-bill-national-convention-india-1925 visited on 12 June 2017). Notably, the part in italics is absent from the final version of Article 14, suggesting, once more, the decoupling of the equality guarantee from formal rule of law. Similarly, the Constitution of India Bill of 1895 stipulated ‘the law shall be equal to all’. Shiva Rao, The Framing of India’s Constitution, Vol. 1, supra, 7.
123. Ibid., 41.
124. Ibid., 89.
125. The Constituent Assembly itself did not discuss the divergent formulations. Consequently, the Debates do not provide us with an interpretive solution either way.
126. Article 17, Constitution of India. For an analysis, see G. Bhatia, ‘Freedom from Community: Individual Rights, Group Life, State Authority, and Religious Freedom under the Indian Constitution’ (2016) 5(3) Global Constitutionalism 351.
127. Parliament of India, Constituent Assembly Debates, Vol. III (30 April 1947); Vol. VII (30 November 1948).
128. For a more detailed discussion, see, infra, Chapter 5.
129. Bankim Chandra Chattopadhyay, Samya (Bibek Debroy trans., New Delhi: Liberty Institute 2002)
130. Ibid.
131. E.g., the Constitution of India Bill, 1895, supra; The Commonwealth of India Bill, 1925, supra. The Nehru Report, 1928, cf. Shiva Rao, The Framing of India’s Constitution, Vol. 1, supra, p. 58.
132. The Karachi Resolution, 1931.
133. Ibid.
134. S. 298, Government of India Act 1935.
135. See, e.g., Gail Omvedt, Seeking Begumpura: The Social Vision of Anticaste Intellectuals (New Delhi: Navayana 2008); Jotirao Phule, ‘Ghulamgiri’ (Slavery) in The Selected Writings of Jotirao Phule (G.P. Deshpande ed., New Delhi: LeftWord Books 2002); Mukta Salve, ‘About the Grief of the Mangs and the Mahars (1855)’ in A Forgotten Liberator: The Life and Struggle of Savitribhai Phule (Braj Ranjan Mani ed., Mountain Peak 2008); B.R. Ambedkar, The Annihilation of Caste (New Delhi: Navayana 2014).
136. The story of sexual orientation is just such a story.
137. Lawrence v. Texas, 539 U.S. 558, 579–80 (2003).
138. Ronald Dworkin, ‘Constitutional Cases’ in Taking Rights Seriously 163–85 (Cambridge: Harvard University Press 1977).
139. S. 15, Canadian Charter of Rights and Freedoms, 1985.
140. For an account, see, e.g., Joshua Sealy-Harrington, ‘Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach’ (2013) 10 Journal of Law and Equality 37.
141. S. 9(1), Constitution of South Africa, 1996.
142. S. 9(3), Constitution of South Africa.
143. See, e.g., Chris McConnachie, ‘What is Unfair Discrimination? A Study of the South African Constitutional Court’s Unfair Discrimination Jurisprudence’, D.Phil. Thesis, University of Oxford 2014 (on file with the author).
144. R v. Kapp, 2008 SCC 41 (Supreme Court of Canada); Egan v. Canada (1995) 2 S.C.R. 513: ‘whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to enumerated grounds’; but see Vriend v. Alberta (1998) 1 S.C.R. 493 (concurring opinion of Justice L’Hereux-Dubé) holding that ‘grounds’ are merely illustrative of the real issue, which is the impact (in terms of disadvantage and indignity) upon groups; see also Khaitan, ‘Reading Swaraj into Article 15’, supra, 423, arguing that the concepts of ‘immutability’ and ‘fundamental choice’ underpin Article 15(1), and Khaitan, ‘Beyond Reasonableness’, supra, 200, arguing that ‘group vulnerability’ is merely an ‘embellishment’ to the personal autonomy grounding. I disagree.
145. Chris McConnachie, ‘Human Dignity, “Unfair Discrimination” and Guidance’ (2014) 34(3) Oxford Journal of Legal Studies 609.
146. For a version of this argument, see Jed Rubenfeld, ‘The Right of Privacy’ (1989) 102 Harvard Law Review 737; ironically, in Naz Foundation, it was Respondent No. 6—arguing for the retention of S. 377—who made this argument most clearly: ‘… very few people identify others in terms of their sexual orientation’. Naz Foundation, supra, counter-affidavit of R6, (on file with the author). Respondent No. 8, Voices Against 377, did hint at the immutability framework, arguing that same-sex intercourse was entirely natural for homosexuals. In my view, the Court correctly did not adopt this much-criticized ‘born this way’ framing of the issue.
147. McConnachie, ‘Human Dignity’, supra.
148. For a similar, though less detailed, analysis, see the judgement of the High Court of Fiji in Dhirendra Nadan v. State, supra.
149. The Court also found that S. 377 violated Article 15(1), because it perpetuated stereotypes about gender roles. I do not have the space here to examine that argument in full.
150. Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
151. See, e.g., Tarunabh Khaitan, ‘Koushal v. Naz: Judges Vote to Recriminalise Homosexuality’ (2015) 78(4) The Modern Law Review 672.
152. Koushal v. Naz, supra, ¶42.
153. See, e.g., Baker v. Carr, 369 U.S. 186 (1962).
154. Rajbala v. State of Haryana (2016) 1 SCC 463.
155. Rajbala v. State of Haryana, supra, ¶85.
156. State of West Bengal v. Anwar Ali Sarkar, supra, ¶92 (concurring opinion of Justice Bose).
157. Naz Foundation, supra, Written Submissions of the Union of India, p. 56 (on file with the author).
158. Although, in view of serious scholarship arguing for treating obesity as an ‘analogous ground’ under Section 15 of the Canadian Charter, perhaps no claim can be simply dismissed out of hand! See, e.g., Emily Luther, ‘Justice for All Shapes and Sizes: Combating Weight Discrimination in Canada’ (2010) 48(1) Alberta Law Review 167.
159. See Law Commission of India, Report No. 256: Eliminating Discrimination against Persons Affected by Leprosy (April 2015), http://lawcommissionofindia.nic.in/reports/Report256.pdf (visited on 13 June 2017). (An interesting aside: the author of this law commission report is A.P. Shah, who also wrote the High Court’s opinion in Naz Foundation).
160. See, e.g., Susanne Baer’s discussion of a German Federal Constitutional Court case involving legislative differentiation of compulsory notice period for blue-collar and white-collar workers. Susanne Baer, ‘Equality’, supra.
161. State of Maharashtra v. Indian Hotel & Restaurants Association (2013) 8 SCC 519.
162. Ibid., ¶¶112–13.
163. Ibid., cited in ¶121.
164. This line from Charles Evan Hughes was quoted by Justice Khanna
in his dissenting opinion in A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
165. Navtej Johar v. Union of India, W.P. (Crl.) No. 76/2016. For an analysis, see Gautam Bhatia, ‘Civilisation has been brutal: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement’, Indian Constitutional Law and Philosophy Blog (6 September 2018), available at https://indconlawphil.wordpress.com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-the-supreme-courts-moment-of-atonement/.
166. Id., ¶27 (concurring opinion of Justice Chandrachud).
167. Id., ¶14 (concurring opinion of Justice Malhotra).
3: Equality of Opportunity: N.M. Thomas, Group Subordination, and the Directive Principles
1. Marc Galanter, Competing Equalities: Law and the Backward Classes in India 1 (Berkeley: University of California Press 1984).
2. The phrase ‘color-blind’ belongs to Justice John Marshall Harlan of the Supreme Court of the United States, dissenting in the notorious Plessey v. Ferguson, 163 U.S. 537 (1896), on the issue of racial segregation in trains. For an account of the genealogy and meaning of the phrase, see, Reva Siegel, ‘From Color-Blindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases’ (2010–11) 120 Yale Law Journal 1278–1366.
3. Writing in 1962, L.A. Sheridan identified a number of other constitutions having similarly structured provisions. L.A. Sheridan, ‘Equal Opportunity of Public Employment: Non-discrimination in Public Services in India’ (1962) 11 International and Comparative Law Quarterly 782. Examples included Nigeria and Malaya.
4. This chapter does not, however, present an essay on reservation jurisprudence, which is a vast and complex subject overlapping with questions of sociology and anthropology, and with many attendant facets, such as the identification of backward classes, judicial review, the use of subjective and objective tests to determine group membership, appointments and promotions and other aspects of employment, the interplay of Article 335 with Article 16, and so on. Nor does it join the debate on whether reservations have been successful, or are self-defeating, perpetuating the exact problems that they were originally designed to solve. On the subject as a whole, the classic, though now dated, text remains Marc Galanter’s magisterial Competing Equalities, supra. In this chapter, I focus on reservation jurisprudence only for making a broader argument about the constitutional vision of equality.
The Transformative Constitution Page 45