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The blog aims to simplify the intricacies of Constitutional Law and explain diverse issues through the lens of the Constitution. We seek to glorify the democratic spirit of the Constitution and imbibe Constitutional Objectivity in every citizen. The primary focus – though not exclusive- of this blog is upon the text, history, philosophy, interpretation, and values of the Constitution. Join our initiative and connect with us.

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Populism, democracy and accountability

Democracy means “the rule of people” and the word is derived from two Greek words, i.e. ‘Demos’ and ‘Kratia’, which literally translates to the Rule of People. India, the land of a heterogeneous population which is sometimes considered as a ‘fruit bowl’ (wherein different fruits denote different religions, cultures, castes, races etc.), is also a constitutional democracy. In a constitutional democracy like India, the People elect their representatives through Ballot-box or highly controversial EVMs on election day for five years and the government is guided by the principles of the Constitution. While voting at a ballot box, the voter expresses his will and choose her representative. In essence, the majority party in the Parliament enjoys the will of the people. But do they have the power to translate the will of the People into justifying their unconstitutional actions? That is the difference between a populist government and a democratic one.

The populists use the machinery of the state to fulfil their goals which are generally apolitical and are often against the established constitutional norms and they do it with the support of the “majority of the People” who fall in line with their ideology, simply by conviction. Generally, democracy requires different institutions of the state to be transparent, accountable and independent. But what happens in populist regimes is totally different, they capture all the so-called independent institutions. The capturing might not be direct, such as booth-capturing on the voting day, but it can simply be filling up offices of these independent institutions with persons who will deliver certain decisions which are favourable to the populist regimes. The only “legality” which these regimes have is the popular support of the People, our beloved Janta Janardhan.

The founding fathers of the Indian Constitution envisaged a dream of a nation built on principles of democracy. The Executive, i.e. The Prime Minister and his ministers, are accountable to the Legislature, which is accountable to the People of the Nation. When a government takes any decision, it must be constitutionally valid. A decision that goes against the principles of the Constitution is unconstitutional. Even though the populist regimes have a brutal majority in the Parliament, still ideally they must abide by the principles of the Constitution. But in fact, they do not. They do what they want to do. The populist regimes which are guided by religious fanatics are more dangerous as the important decisions, such as, locking down a religious congregation during a pandemic is taken by the heads of religious establishments than the government. The decision to stop the spread of the virus is taken by the contractors of divinity, not scientific mind, not democratically elected government. But such an attitude is only shown when the decision is about their religion. The minorities are usually slapped with several provisions of the penal code.

But complaints aside, what do we need in such populist regimes? Is there any solution? According to the Constitution of India, the Hon’ble Supreme Court is the guardian of the Constitution, the protector of rights, the third branch of the government to keep a check on the populist regimes, but where is the Supreme Court? There are dead bodies lined outside the cremation grounds, there are “The People” who are dying without oxygen, there are “the People” who are not getting necessary medication due to black marketing of the same, and there are children who are now orphans. Who will protect their rights? The government is silent, the parliament is silent and the Courts are silent- just like the bodies buried under the ground- silent.

The majoritarian government will not stop until they fulfil their agendas. They will win the States, they will get the seats, they will capture every institution. But the Supreme Court- the most powerful counter-majoritarian institution in the country- must come forward and protect the rights of the citizens. They have nothing to lose. An opposition leader will be sent to jail if she raises her voice. An NGO will be charged under FCRA or UAPA if they will question the government more than needed. A common man will be labelled as anti-national. But the Hon’ble Judges of the Supreme Court of India have nothing to lose.

The Hon’ble Supreme Court of India, please save us!

Guest post: Trial by Media: Violation of Right to Reputation?

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog. This article is a part of series where the author analyses Article 19 vis-a-vis recent events.]

Introduction- What is a Media Trial?

In India, Media is regarded as the fourth pillar of democracy. The media provides the public with information by its reporting and commentary on the ongoing social and public events in the society. Media acts as a watchdog that helps create awareness and aids in formation of opinion for the laymen and helps in moulding their perception of an event. Media Trial means the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt irrespective of whatever is the verdict in the court of law. With the advent of technology in recent times, media’s presence has been ubiquitous. Media trials occur when the media houses start acting as “public courts” or “Janta Adalat” and start interfering with the proceedings of a case. Media may subtly or overtly give their verdict on a case, ignoring the crucial difference between an “accused” and a “convict” thereby disregarding the principle “innocent until proven guilty.”

Freedom of press and Indian Constitution

Freedom of press as a standalone right doesn’t exist under the Indian Constitution. However, it is implicit under Article 19 (1) (a) of the Indian Constitution which provides for freedom of speech and expression for all citizens of India. This fundamental right is enshrined in the Constitution to protect the democratic values of the country. Freedom of speech and expression freedom to express in oral or writing, one’s thoughts, opinions, ideas and beliefs. Freedom of press isn’t exclusively mentioned in the Constitution as it was made clear by Dr. B.R. Ambedkar during the Constituent Assembly debates that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned. 

In the case of  Romesh Thappar vs State of Madras, the Supreme Court held  that freedom of speech and that of the press lay at the foundation of a democratic society, and without free political discussions, no public education is possible, which is important for the proper functioning of the government. It was observed by Justice Patanjali Sastri in the case that the freedom of speech and expression includes propagation of ideas, and that freedom was ensured by the freedom of circulation. The Supreme Court, through various cases has made it clear that right to speech and expression clearly includes the right to publish and circulate one’s ideas, beliefs and opinions through any mode of publication (it has been discussed on this blog extensively – check here). 

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar , the Supreme Court while deciding upon the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.

Right to reputation and Media Trials

Freedom of speech isn’t a sacrosanct, absolute right and is subject to reasonable restrictions. These restrictions can be for varied reasons including the grounds of right to privacy, right to reputation, contempt of court etc. Every person has the fundamental right to reputation in the same manner as they have the right to freedom of speech. Article 21 of the Indian Constitution includes the right of a person to live with dignity which also comprises the right to reputation.

Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protect the right of reputation of an individual by stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 19 of ICCPR further emphasises this right by stating that everyone shall have the right to freedom of expression but it shall be subject to restrictions such as- respect for the right to reputation of someone. The UDHR is only a persuasive and not a legally binding instrument but India has ratified ICCPR and thus, is bound to follow the Covenant. However, no express and consequent legislation has been made in India with this regard. 

Media derives its right of publication from Article 19 (1) (a) of the Indian Constitution but when a statement harms the reputation of a person it is said to be defamation. In India, defamation is considered both a civil wrong (tort) as well as a criminal wrong (Section 499 of the Indian Penal Code). Every criminal administration, across all democratic countries, also      ensures that an accused is given a fair trial. Right to fair trial in a criminal prosecution is an implied right under Article 21 of the Indian Constitution – as a fundamental right. A media trial jeopardises that right to fair trial of the accused, forgoing the principle of natural justice as well as also violating their right to reputation. 

In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, The Apex Court stated that, “―the impact of television and newspaper coverage on a person‘s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

The justice delivery system in India being so excruciatingly slow, by the time the court pronounces a verdict, the media already disparages the image of not only the accused but also their family. There have been many instances where the media has passed its own verdict before the Court itself. In the infamous Jessica Lal case, when renowned lawyer Ram Jethmalani decided to appear on behalf of the accused his morality was questioned and one of the senior editors of a news channel branded him as trying to “defend the indefensible” thereby already declaring the accused guilty. 

Conclusion

Media has increasingly become an important part of everyone’s lives. It acts as a watchdog that strives to keep the public informed, aware and vigilant. However, at times the media tries to sensationalize the news in order to grab the attention of the viewers. With the advent of 24 hour news coverage, media houses have delved into sensationalism rather than sensibility. After the augment of Television Rating Points (TRP), media houses try to attract a bigger audience and hence resort to whatever means through which they can achieve high ratings. This can lead to the media overstepping its limit and acting as a judicial institution of its own. It is difficult for the general public to not get swayed by an opinion or narrative that is being pushed relentlessly on them. Such extensive coverage may endanger the interests of the parties involved especially if a matter is sub judice

Under the existing law of Contempt of Courts Act 1971, pre-trial proceedings  are exempt from falling under the ambit of contempt. Publishing material with respect to the parties involved can affect their rights to a fair trial. Due to such lacuna, the press feels empowered to write and circulate excessive or at times, distorted facts. 

The “Press Council of India” (PCI) which is a statutory body is concerned with developing and maintaining the standards of print media. The PCI has very limited powers under the Press Council of India Act 1978. The Act only refers to print media and hasn’t been updated to also include electronic media as well. Under the Act, the PCI can only “warn, admonish or censure the newspaper, the news agency, the editor or the journalist.” A mere warning is not enough to curb a media trial and the perils that arise because of it. The PCI should be given a stronger role to ensure that the media aren’t misusing their freedom of speech. 

The trial by media has gained a renewed debate after the “Disha Ravi toolkit case.” The High Court of Delhi admonished certain Media houses to ensure that proper editorial control is exercised while disseminating information to ensure investigation is not hampered. The Media Houses were criticised for its sensationalized reporting. Similarly, after Bollywood actor Sushant Singh Rajput’s death, the accused Rhea Chakraborty had to file a plea against the unjust media trial meted towards her. Chakraborty filed an affidavit stating that ‘the constant sensationalization of the case’ had caused her ‘extreme trauma’ and an ‘infringement on her privacy.’

Thus, Media trial has become a serious issue in contemporary times. The dangers arising out of such misreporting should be addressed and if needed, the government should take concrete steps to prevent it from happening and impose penalties on media houses that partake in the same. The freedom of press is an inalienable right in a democracy but at the same time, this freedom also exposes its loopholes. Therefore, it is time that the government takes active steps in ensuring a more conscious, sensible and accountable journalism. More importantly, the media should be conscious enough to report neutrally and understand that they cannot over step their freedom of press. 

GNCT Delhi v. Union of India: An analysis of Dharna and Drama

[Editorial Note: The author issues a public apology for using footnotes in this blog-post as opposed to hyperlinks. This blog-post was written during lockdown 2020, which means before the recent controversial GNCTD (Amendment) Bill, 2021 was under consideration. This blog-post provides a background to the bill as the author analyses the judgment of the Hon’ble Supreme Court which will diluted if this Bill will be passed by the Parliament.]

During the year 2017-18, the people of Delhi were wretched due to ‘policy paralysis’ as there was a tussle between the Delhi Government and Lieutenant Governor of Delhi (hereinafter referred to as LG). There was dharna on one side and drama on the other; that’s how the constitutionally established political system of Delhi was ‘oozing venom’ on each other. The scuffle between the two constitutional authorities raised several legal and constitutional issues on the scope of their respective powers and limitations in the National Capital Territory of Delhi. In this blog-post, the decision of the Hon’ble Supreme Court in the case of Government of NCT of Delhi v. Union of India & Another (hereinafter referred to as the Delhi case), which answered the several questions of law with regard to Delhi, will be analysed and significance of the same would be foregrounded.

Issues

The Delhi case has its own convolution as the main issue in the case was the interpretation of Article 239AA of the Constitution which is a special provision with respect to the National Capital Territory of Delhi. The “centripodal” conundrum was with regard to the administrative powers of the LG, as to whether- (a) he is controlled by the phrase ‘aid and advise’ of the Council of Ministers (hereinafter referred to as ‘COM’) [or]; (b) his power as the administrator of NCT of Delhi remains untouched by the 69th constitutional amendment. Does the constitutional amendment give special status to NCT of Delhi among the Union Territories? Should LG be informed about every decision taken by the COM? Can the LG refer ‘every (or any) matter’ under proviso Article 239AA (4) to the President? What must be the guiding principles when there is difference of opinion between the LG and the COM? These are the few issues which were addressed by the Hon’ble Supreme Court.

The Judgment

Article 239AA of the Constitution confers special status to the NCT of Delhi. It is distinguished from Article 239 and Article 239A as the purpose of inserting this Article was to confer special status to Delhi. The batch of petitions filed before the Supreme Court sought for the judicial interpretation of mainly two clauses, that is, [i] Article 239AA (3)(a) and (b) – which states that the Legislative assembly of Delhi is empowered to make laws with respect to whole or any part of NCT of Delhi with respect to matters enumerated under List II[1] or III and the Parliament, too, will have the power to laws with respect to all the matters and; [ii] Article 239AA (4) and its proviso – which states that there shall be COMs[2] with the Chief Minister at its head to ‘aid and advise’ the LG and if there is a difference of opinion between the two, then the LG can refer the matter to the President for a decision. The judgment aims to resolve any disharmony and anarchy by making the parties realize the feeling of ‘constitutional renaissance’[3]. The purposive interpretation must be adopted to interpret Article 239AA so that the basic structure of the Constitution (i.e., Democracy and Federalism) is augmented in NCT of Delhi which will further reinforce the confidence placed by the people of Delhi in the elected-government.

  • Status of NCT of Delhi

The NCT of Delhi is neither a state nor ‘just’ a union territory, but under the constitutional scheme Delhi and other union territories are not on same pedestal.[4] Its status is unique. By the insertion of Articles 239AA and 239AB, it could be understood that the status of NCT of Delhi is sui generis and it is a class by itself. By the introduction of Westminster style cabinet system of government, the residents of Delhi have a “larger say in how Delhi is to be governed”.

  • Executive powers of COM

The conjoint reading of Article 239AA (3)(a) and Article 239AA (4) reveals that the executive power of the NCTD is coextensive with the legislative power of the NCTD which extends to all the matters in state list (except three matters) and concurrent list. Therefore, the executive power of the COM is coextensive with the legislative powers of the Assembly, so that various policies decisions are implemented smoothly. Further, the executive power of the Union government does not extend to the executive powers of the NCTD, hence, it does not have any say in the policy decision of Delhi’s COM. Only legislative power of the Parliament is conterminous to legislative power of Delhi which basically means that “nothing shall derogate the powers of Parliament to make laws with respect to any matter for the Union Territory of Delhi”[5].

  • Is LG is bound by ‘aid and advise’ of COM?

Under Article 239AA(4), it is stipulated that Delhi now has a Westminster Style cabinet system of government where there ‘shall’ be COM who are responsible to the Legislative Assembly and the COM headed by the Chief Minister shall ‘aid and advise’ the LG. Therefore, the LG is bound by the aid and advise of the COM, as per Article 239AA (4) of the Constitution, only in the matters in which legislative powers has been conferred upon the Assembly (except in the matters where he has been entrusted to act in his discretion). To support this argument, the bench emphasized on section 42 of the 1991 Act which is identical to the clause (2) of the Article 74[6] which is also a manifestation that the words ‘aid and advise’ must be uniformly interpreted. Section 42 states that:

42. Advise by Ministers. The question whether any, and if so what, advise was tendered by Ministers to the Lieutenant Governor shall not be inquired into in any court.

Just like the aid and advise of the Union’s COM is binding on to the President, in the same way the ‘aid and advise’ of the COM of NCT of Delhi must be binding on the LG.

[On a similar note, the COMs are just required to “communicate and inform its various proposals, agendas and decisions to the LG so as to keep the LG apprised and to enable him to scrutinize the same”[7] but there is no need for a prior concurrence of the LG as it will dilute the idea of representative governance and democracy as conceived for Delhi under Article 239AA.]

However, this is subject to the proviso of Article 239AA (4) which confers upon LG the power to refer “any” matter to the President for a ‘binding decisions’, when there is a difference of opinion between LG and COM. “This proviso to clause (4) has retained the powers for the Union/ LG even over matters falling within the legislative domain of the Delhi Assembly”[8], based upon the ‘thoughtful interpretation’ of the LG. But does LG have the power to refer “every” matter to the President? This would be answered in the forthcoming section of this chapter.

  • Can the LG refer “every” matter to the President?

Although the LG is not a titular head of Delhi as rather, he has the power to exercise discretion in certain matters, unlike the President and the Governor. But the LG’s discretionary power is limited to only three matters over which the Assembly does not have any legislative powers, meaning thereby, if the COM makes any policy with regard to any matter which is outside their jurisdiction then the LG would be well within his powers to reject the policy or refer it to the President. Coming to proviso of Article 239AA (4), the term “any” cannot be construed neither broadly, to include every matter, nor narrowly, as argued by the petitioners, rather it must be interpreted in a way where the phrase is workable and the constitutional balance is maintained. The word ‘any’ is unlikely to mean anything under the sun and it must have a limitation on it which must be determined by the context in which it is used.[9] The Court held that the word used in the proviso cannot be construed as ‘every matter’ and it must be interpreted in a manner so as to ‘deduce the real intention of the Parliament’ and the purpose for/in which the word has been used. The Court went further to hold that the rule under the proviso is an exception and not the general norm (Paragraph 233). The LG must act with constitutional objectivity and must be guided by constitutional morality as ‘constitutional trust’ has been reposed in his office. The LG must not refer every matter to the President (‘in mechanical or routine manner’) as it would fail the idea of representative governance and democracy and it must not be taken as if the LG has a “right to differ” from the COMs.

Furthermore, the COM must adhere to the 1991 Act and the rules made therein, hence, the LG ‘must be apprised with every decision taken by the COM’ (Paragraph 233). The LG can differ from the decision of the COMs but, first, the efforts must be made to resolve the conflicts. In case of a difference between the LG and a particular minister, the matter must be referred to the Council; then, if the difference persists, then the matter must be referred to the President. (Here the reference must be made to Rule 49[10] and Rule 50[11] of The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993)

CJI Misra demonstrated the role of the LG and COM as (Paragraph 236):

There should   not   be   exposition   of   the   phenomenon   of   an obstructionist but reflection of the philosophy of affirmative constructionism and a visionary. The constitutional amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that the NCT of Delhi is not a State.”

Therefore, before making any reference to the President under the proviso, the 1993 Rules must be followed and there must be dialogue and discussions between the COM and LG to resolve the differences. In the words of Justice D Y Chandrachud, “a reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President” (page 411, Paragraph M (19)). Henceforth, the LG must not have a hostile attitude towards COMs and Chief Minister, rather he should act as a facilitator, “keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional   balance, the concept of constitutional governance and objectivity and  the nurtured and cultivated idea of respect for a representative government” (page 232, Paragraph xviii).

Significance of the Judgment

In Delhi’s case, the Supreme Court declined to lay down an ‘exhaustive’ list where the LG may choose to refer the matter to the President. Rather Justice Chandrachud’s concurring opinion laid down a broader rubric of “national concerns”, where the reference to the President can be made, which is not addressed by the majority judgment. This simply means that LG can refer the matter when the Delhi government touch upon the ‘legitimate interest’ of the Union Government (as it is physically based in Delhi). One example: opening of Mohalla Clinics (by Delhi Government) will not come under “national concerns”, and therefore it is not in the scope of proviso.

With regard to Article 239AA (4) proviso, there is no specificity in the majority judgment as to what could be referred to the President. This could be “ameliorated” by Justice Chandrachud’s concurring opinion. Although the disputes between the Delhi Government and Union are purely “political” in nature, but in such cases, constitutional doctrines and principles can help to resolve the disputes.

Even after this judgment, recently during the COVID-19 crisis, the LG (as Chairperson of Delhi Disaster Management Authority) reversed the decision of the Delhi Government, in which the Government reserved the hospital beds for residents of Delhi only. Although the order passed by the Delhi Government was contrary to Article 21 of the Constitution as it threatens the life of the individuals who are not residents of Delhi, but still ‘reversing’ of the decision of the Delhi Government is contrary to the Delhi’s case and the principles laid down therein. The LG can disagree and refer the matter to the President, but can he just overrule the decision taken by the duly elected government? The new Government of National Capital Territory of Delhi (Amendment) Bill, 2021 makes it possible. Will it held unconstitutional by the apex court? The question remains.



[1] Article 239AA (3)(a)- “The legislative assembly shall have power to make laws…… with respect to state list or concurrent in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State list and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2, and 18.”

[2] COMs to be not more than ten percent of the total number of members in the Delhi Legislative Assembly.

[3] By Constitutional renaissance, CJI Misra meant, “true blossoming of the constitutional ideals, realization and acceptance of constitutional responsibility within the boundaries of expression and silences and sincerely accepting the summon to be obeisant to the constitutional conscience with a sense of reawakening to the constitutional vision” (The Delhi Case at pp. 220-221, Paragraph 275)

[4] New Delhi Municipal Corporation v. State of Punjab, (1997) 7 S.C.C. 339.

[5] Article 239AA(3)(b)

[6] Article 74, Clause 2: “The question whether any, and if so what, advise was tendered by Ministers to the President shall not be inquired into in any court”.

[7] As per, The Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, which are framed by the President in exercise of the power conferred upon him under Section 44 of the Government of National Capital Territory of Delhi Act, 1991.

[8] The Delhi Case at pp.161-162, Paragraph 195.

[9] J.L. Austin, How to do Things with Words, The William James Lectures delivered at Harvard University, 1955.

[10]  Rule 49 of T.B.G.N.C.T.D Rules, 1993: In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion   on   the   matter   to   settle   any   point   on which such difference of opinion has arisen. Should the   difference   of   opinion   persist, the   Lieutenant Governor may direct that the matter be referred to the Council.

[11] Rule 49 of T.B.G.N.C.T.D Rules, 1993: In case of difference of opinion between the Lieutenant Governor and the Council with regard to any matter, the Lieutenant Governor shall refer it to the   Central   Government   for   the   decision   of   the President and shall act according to the decision of the President.

Guest Post: The Untouchability provision under the Indian Constitution and its contemporary Interpretation

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog]

What is Untouchability?

Defining untouchability has always been an arduous task for both the layman and the experts. Britannica defines an untouchable as someone who is a Dalit, officially Scheduled Caste, formerly Harijan, in traditional Indian society, the former name for any member of a wide range of low-caste Hindu groups and any person outside the caste system. Article 17 of the Indian Constitution lays down the provision for abolishing untouchability stating that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. However, the article in itself does not define the term untouchability presuming it is  known to one and all. 

Evolution of Article 17

In pursuance of Article 17, the Parliament passed the Untouchability (Offenses) Act in 1955. However, the Act fails to define untouchability itself. With respect to the practice of untouchability, the Act makes it a crime to disallow any person from entering public veneration due to the practice of untouchability among other things. 

More than 70 years ago, when the framers of the Constitution were debating this Article in the Constituent Assembly, economist and socialist leader K.T. Shah wanted the Drafting Committee to clarify this: ‘We all know that at certain periods women are regarded as untouchables…will it be regarded as an offence under this article? The question arose from the lack of definition of the term “untouchability”. With respect to the same, K.M. Munshi argued that in the draft Constitution, the word “untouchability” had been deliberately placed within quotation marks – thus making it clear that the idea was to “deal with it in the sense in which it is normally understood” (i.e., the narrow, specific sense). Despite this, another Constituent Assembly member, Naziruddin Ahmad proposed an amendment which stated that no one shall be treated or regarded as an ‘untouchable’ on the basis of their caste or religion, thus wanting to water down the word to make it less ambiguous. However, the same was rejected by the Chairman of the Assembly, Dr. B R Ambedkar. 

While some of the debates focused on the caste- centred aspect of untouchability, the definition of the word could not  be narrowed down. From the deliberations over Article 17, it seems that the framers felt the need to incorporate a separate provision for Untouchability in the Constitution apart from Article 14 and 15. It appears from the discussions in the Constituent Assembly that the practice was so widespread and prevalent that the drafters had to specifically call out and criminalise the same. 

Sabarimala Judgement and the Renewed Debate over Article 17

Facts of the case : Sabrimala is a Hindu temple dedicated to Lord Ayyappa, located in Kerala. Being a place of pilgrimage, the shrine is visited by 45-50 million devotees every year. In 1991, the Kerala High Court banned the entry of women above the age of 10 and below 50 years from entering the temple stating that only the priests of the temple can make the decision as to who can and cannot enter the temple. In 2006, the ban was contested  by the Indian Young Lawyers Association who claimed that the ban was  “a violation of ideals of equality, non-discrimination and religious freedom”. The following year, the (Left Democratic Front) government in Kerala led by Chief Minister VS Achuthanandan had filed an affidavit in the court supporting the PIL (Public Interest Litigation) and questioned the ban on entry of women devotees. The Apex Court in 2017 referred this case to a constitution bench with the most pertinent question being : Does this ban on women from entering the temple amount to violation of their fundamental rights as enshrined in the Indian Constitution?

The Supreme Court in 2018 declared the ban on menstruating women from entering the shrine at the Ayyappa Temple as unconstitutional. The majority believed that women must be treated equally with their male counterparts under Articles 14 and 15 and affirmed their right to freedom of religion under Article 25. The petitioners in the case argued that Article 17 of the Constitution prohibited untouchability “in any form.” The question, therefore, was whether the banning of women from entering  the temple fell within the ambit of Article 17. 

For Justice Indu Malhotra, the meaning of the word untouchability was straightforward. According to her, Article 17 intends  to prohibit caste-based untouchability only. It does not cover other forms of social exclusion. In advocating against literal interpretation of the Article, she cites various academics, precedents, and debates of the Constituent assembly to make her point. She even emphasised on the lack of other precedents that grant Article 17 an alternative meaning. 

Justice Chandrachud did not disagree that untouchability primarily includes caste-based discrimination and exclusion, however he did not believe that the provision solely included the aspect of caste. While acknowledging the efforts of the drafters of the Constitution to remove the perils arising out of caste hierarchy, J. Chandrachud took the literal meaning of untouchability in any form to include menstrual taboos in the scope of the Article. He took Article 17’s roots of “purity and pollution” and literally interpreted the phrase “in any form” to advance this provision to the exclusion of women. He Further stated that by the order of prioritisation, the right to religious freedom is to be “exercised in a manner consonant with the vision underlying the provisions of part III.” Therefore, the banning of women from religious worship is subordinate to constitutional values of liberty, dignity and equality. 

Conclusion

Article 17 puts the word “untouchability” within quotation marks, suggesting that its meaning is limited to its specific, historical sense i.e. untouchability based on caste hierarchy. Consequently, while barring of women of menstruating age from a temple is undoubtedly a practice of segregation, exclusion, and enforcement of hierarchies like untouchability, the question remains whether this practice can be included in the term “untouchability.” Justice Indu Malhotra counter arguments and dissenting voice has also been subject to criticism. It is argued that J. Malhotra sets a dangerous precedent when she says that the rationality of a religious practice should not be questioned by the Court. The dissenting argument presented by Justice Malhotra in rejecting the merits of Article 15 and 17, come from a restrictive practice of constitutional interpretation through an “originalist approach” that is based on the intention of the framers of the Constitution at the time of drafting the text. The critics believe that originalism as a method of constitutional interpretation has been losing relevance and becoming redundant while the “living tree” doctrine (the constitution as an evolving and organic instrument) has gained prominence. 

From a reading of the Constitutional Assembly debates, it can be inferred that the framers intentionally left the meaning of the term untouchability vague. It is possible that the framers felt that new forms of social exclusion can arise in the future, thus they did not delve into defining the word. There is, therefore, strong warrant in the constitutional text and drafting history for the broad reading of the term untouchability. To quote J. Dipak Misra, in a recent judgement, “a constant awakening as regards the text, context, perspective, purpose and the rule of law” is to assert constitutional morality and the dignity of women across castes of a particular faith in this case as an overriding constitutional goal. 

* Read Shreya Singh’s article titled “Untouchability In India: An Age-Old “Social Distance” Still Maintained” here to understand Article 17 further. (Read here)

Freedom of circulation and propagation of Ideas

Propagation of ideas and circulation of information is part and parcel of democracy and it is essential, as the Supreme Court held in Sakal Papers v. Union of India, for the “proper functioning of the processes of democracy”. In this article, the author will look into Article 19(1)(a) with respect to freedom of circulation and propagation of ideas as a Fundamental Right under the Indian Constitution. The availability of various ideas in the marketplace without any interference from the State strengthens the foundations of democracy. People can only have informed debates on the issue of “great importance” when the information is readily available through various portals to the public. With this context, the author will analyse two important judgments of the Supreme Court on this point of law.

Locating the Right to Freedom of Circulation and propagation of Ideas

In Sakal Papers case, the basic issue was constitutionality of Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. The objective of these laws was to “regulate the prices charged for newspapers in relation to their pages” which was ostensibly done to “prevent unfair competition” and give “fairer opportunities” to all the other newspapers. The petitioners contended that through these laws the selling price of their newspapers will increase for their readers, if they want to retain the same number of pages as they are currently distributing, which will lead to an adverse effect on their circulation. Otherwise, if not to increase the selling price, the newspapers will have to reduce the number of pages which will infringe their right to circulate and propagate ideas. The five-judges bench of the Supreme Court noted in Paragraph 26 that,

26. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged.

The Supreme Court explicitly held in 1950 in the case of Brij Bhushan v. The State of Delhi that there is no mention of freedom of press in the Constitution, but it falls within the ambit of Article 19(1)(a)—that is freedom of speech and expression. In the Sakal Papers case, the Supreme Court while focussing on this Right under the Indian Constitution, held that “The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression.” Having said this, the Court then held two other important and allied rights, that are, the propagation of ideas can be done either by word of mouth or by writing and the volume of the content published. A citizen has a right to publish whatever she pleases (matter does not matter, unless it lies within the ambit of clause 2 of Article 19) and in any amount she pleases. Any restraint placed on these rights is a violation of Article 19(1)(a). The Order and the Act of the government was held unconstitutional by the Court as they infringe the press’ right to publish their ideas and the volume of the matter they are publishing. The court said in paragraph 27 that,

It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.”

Furthermore, the Courts must ensure that the fundamental rights are not to be interpreted narrowly and they must not be “cut down by too astute or too restricted an approach” (see LIC v. Manubhai D Shah). In Manubhai D. Shah, the Court held that a citizen has a right to propagate an idea through “the print media or any other communication channel example the radio and the television”. Circulation of ideas is very important for a healthy democracy as it enables the citizens to gather information and build opinions. The Court held in paragraph 8 that, “freedom to air one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.

In Manubhai D. Shah, the Court while building upon the freedom to propagate ideas held that a citizen also has a right to reply/rebut to a criticism levelled against the view propagated by him. Hence, any restriction on speech and expression apart from Article 19(2) on a citizen’s right is a threat to democracy. Further, the restrictions must not be interpreted so widely that it infringes upon the citizens’ right and dilutes the whole purpose.

Conclusion

Authoritarian governments use various penal laws like the draconian UAPA, Sedition (Section 124A of the Indian Penal Code), National Security Act etc., to infringe citizens freedom of speech and expression under the garb of ‘reasonable restrictions. These penal laws have stringent punishments and bail conditions that are restrictive which impedes the courts from granting bail. Although the courts have championed civil liberties despite such stringent provisions for bail, the courts have looked into the accusations more diligently and judicially. The recent ‘toolkit’ incident is a classic example to portray the government’s use of sedition laws to shut dissent and deter informed citizens from critiquing government’s policy.

Read more on democratic backsliding in India here. Here, the author discussed why there must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny especially under the present government.

Why do we have Reservations? An analysis of NM Thomas Judgment

[Editor’s Note: The Supreme Court’s approach on merit and efficiency of administration in the cases of  reservation is not a correct approach conceptually and philosophically, and such an approach leads to deflection from the values of the constitution and compromise the struggle for constitutional justice. The court’s approach is based on the view that reservations and merit are opposed to each other. But there is a need to balance the two.]

In the previous post, the author discussed the lists prepared under Article 341 by Presidential Notification, creamy layer concept and its application to SC/STs (read it here). In this post, the author will discuss the reasons behind inclusion of Affirmative Action/Reservation in the Indian Constitution and the ‘equality of opportunity’ clause in light of the Supreme Court’s judgment in State of Kerala v. NM Thomas. Before the judgment of NM Thomas, the Courts of law had held that Article 16(1) which provides ‘equality of opportunity to all citizens’ is an exception to Article 16(4) which provides for ‘affirmative action by the state in the favour of SC/STs’ (see General Manager, Southern Rly v. Rangachari).

Formal and substantive equality

The first two decades of the Supreme Court’s jurisprudence on reservation adopted a narrow view of equality with respect to reservations as it considered clause 4 of Article 16 an exception to Clause 1. It was not a transformative stance. In the words of Hon’ble Justice Subba Rao who dissented in the judgment of T. Devadasan v. Union of India (1964), if Clause (4) would be an exception to Clause (1) then, “the said rule of equality would remain only a utopian conception unless a practical content was given to it”. Equality in  Justice Rao’s knowledge is not only a formal declaration, but it must take into consideration the substantive reality which exists in the society—that is, the evil of group-identity based discrimination.

Under the Constitution of India, the focus point is the individual and his/her rights. But if we look closely to Article 16(1) and 16(4), it talks about ‘group identities’ to which an individual belongs. The same is evident from the words ‘citizens’ in Clause (1) and ‘backward class of citizens’ in Clause (4). Even though the said Clause talks about group identities, still at the heart is the individual who is embedded in an “uneven basic social structure”. That social structure cannot be ignored. Hence, the concept of equality of opportunity shall take into account the social structure and realities. For instance, again in the words of Justice Rao, a race between a racehorse and an ordinary horse would be nothing but ‘a farce of a competition’. Even though the starting line would be the same for both the horses, as per the “formal declaration of equality”, there would not be any real competition. Similarly, “centuries of calculated oppression and habitual submission” faced by Scheduled Castes have “reduced a considerable [them] to a life of serfdom.” Hence, any conception of equality of opportunity under the Indian Constitution must take into account the structural oppression faced by the Scheduled Castes throughout the centuries. This is the aim of Article 16(4) which provides reservations to ‘backward communities’ and the Scheduled Castes and Scheduled Tribes are considered to be ‘backward communities’ by the Constitution makers and there is no debate on that fact. In his dissenting opinion in Devadasan, Justice Rao elucidates the importance of Article 16(4) as a facet of equality in the following words:

That is why the makers of the Constitution introduced clause (4) in Art. 16. The expression “nothing in this article” is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception but has preserved a power untrammelled by the other provisions of the Article.

This radical shift brought forward by Justice Rao was just a dissent, but it laid the foundation for NM Thomas—which in future will declare this dissent as law of the land. It was a positive move towards the realisation of substantive equality under the ‘Reservation jurisprudence’.

N.M. Thomas Judgment and realisation of Substantive Equality

In the NM Thomas case, the statute in question was the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as ‘Kerala Act’), under which Rule 13A required every employee who is to be promoted in subordinate services to give a test within 2 years of promotion, but it gave SC/STs an extension of 2 more years (in total 4 years). Later, Rule 13AA was added and granted the power to the state government to grant more time to SC/STs to pass the test for promotional posts apart from the initial 4 years, but it didn’t exempt them from giving the test.

The main issue, in this case, was whether the impugned provision (Section 13AA) of the Kerala Act is violative of Article 16(1) and (2). According to the facts, an unreserved category candidate didn’t get selected because of this new rule (made under Rule 13A and 13AA) and he challenged the rule in the High Court of Kerala which declared the Rule as unconstitutional violating Articles 16(1) and 335. Then, the State government appealed. They argued, as Justice Iyer records in paragraph 139, “the need to help Scheduled Castes and Tribes, and acting within the Constitutional bounds, to avert mass reversion to lower posts [after being promoted under Rule 13A]”, without abandoning the requirement of passing ‘tests’. J. Iyer further observes, “The State viewed this disturbing situation with concern, and having regard to their backward condition, made Rule 13AA which conferred power on Government to grant further spells of grace time to get through these tests. Simultaneously, a period within which two opportunities for passing tests would be available was afforded by a G. O. issued under Rule 13AA.” The State highlighted the factual realities. The State neither exempted the employees belonging to SC/ST category from giving the examination nor relaxed the minimum qualification for the posts, but just provided grace to them with respect to time.

Socio-economic equality

Now, the issue which arises here is whether the treatment of Scheduled Castes/Tribes unequally through this service Rules in ‘realist socio-legal’ perspective is constitutionally valid or not. Dr Ambedkar during Constituent Assembly debates had pointed out that we might achieve equality between the citizens politically, but we will fail to achieve economic and social equality if we will not remove contradictions between the people which exists economically (with respect to the economic gap) and socially (elevation for some and degradation for some). This gap between the citizens must vanish and reservation is a tool (and a right – which the Calcutta High Court reiterated in the context of Reservations of transgenders in UGC Examination here (2021)) which helps in achieving that. Positive discrimination in favousr of a socially-distressed class will lead to the promotion of genuine equality before the law as a mere declaration of equality does not work in a socially divided society (even Anthony Lester has argued this in 1970). This article  highlights the economic inequality between harijans and non-harijans. There is economic inequality between the citizens, but Dalits face the worst. The social ostracization faced by Dalits all across the country is not because of their economic condition, rather social condition which cannot be remedied by just creating economic equality. Hence, there is a need for socio-economic equality.

To achieve this exposition, the state has an obligation under Article 46 of the Constitution and Article 16 is the tool-kit to achieve that. The explicit mention of SCs and STs in the Constitution, as J. Iyer argues, “makes a super-classification between Harijans and others, grounded on the fundamental disparity in our society and the imperative social urgency of raising the former’s sunken status” (paragraph 153). To illustrate the state’s obligation to “unequally treat” backward classes is not antithetical to Article 16(1) and (2), J. Iyer draws reference from Article 46 and 335 of the Constitution and held that “the Court must wisely read the collective Directive Principles of Part IV into the individual fundamental rights of Part III, neither Part being superior to the other” while relying on the judgment of Kesavananda Bharati. The term ‘caste’ under Article 16(2) is different from the term used under clause 4, i.e., a backward class which constitutes Scheduled Castes and Tribes. Justice Iyer notes this as, “the discerning sense of the Indian Corpus Juris has generally regarded Scheduled Castes and Scheduled Tribes, not as caste but as a large backward group deserving of societal compassion.”, while giving an example from the Section 13 (explanation) of the Income Tax Act, 1961.

Is Article 16(4) really an exception to Article 16(1)?

While reading through Article 16(4), the starting words “nothing in this article” astonishes the reader making them believe that Clause 4 is an exception to Clause 1 and 2. Even the Supreme Court believed this till the dissent of Justice Subba Rao in Devadasan. He observed in his dissent (in Paragraph 190), “The expression ‘nothing in this article’ is a legislative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article.” This proposition which was a dissent note before is accepted by the Majority bench in NM Thomas by Justice Iyer who observed that Article 16(4) “serves not as an exception but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to.” (Paragraph 161)

On the face of it, Clause (4) looks like an exception but on a closer examination it is actually a “constitutionally sanctified classification”. Hence, Article 16 Clauses (1) and (4) are “concordant”, not an exception. Whereas Article 16(1) ensures that equality of opportunity to all citizens “in matters related to employment or appointment to any office under state”, Article 16(4) carves out a mechanism or a tool to ensure that equal opportunity is given to all by ensuring that certain sections of the society, i.e., backward classes, are not left behind in a democratic society. Justice Iyer elucidates this as:

“In a spacious sense, ‘equal opportunity’ for members of a hierarchical society makes sense only if a strategy by which the underprivileged have environmental facilities for developing their full human potential. This consummation is accomplished only when the depressed groups can claim a fair share in public life and economic activity, including employment under the State, or when a classless and casteless society blossoms as a result of positive State action. To help the lagging social segments, by special care, is a step towards and not against larger and stabler equality.”  

On the contrary, there is an argument against this claim that: by giving reservations, the state ensures that casteism kicks in from the backdoor and persists in the society. This is a flawed argument. In the light of this argument and while resting it to bed, Justice Iyer held that, “so, we may readily hold that casteism cannot come back by the backdoor and, except in exceptionally rare cases, no class other than harijans can jump the gauntlet of ‘equal opportunity’ guarantee.” (Paragraph 168)

In conclusion, the reservations do not promote casteism, but it is a tool to cure it. It is a basic necessity to uplift the ‘backward classes’ socially and economically in a socially divided society which breathes casteism. Reservations must be coupled with ground-level education and sensitisation programmes by the state to eradicate the evil of caste from the society.      

Guest Post: Constitution as the Supreme Law of the Land with Special focus on the Civil Liberties

[This is a post by Sana Afraz and Malobika Sen]

Introduction: What were the intentions of the Founding Fathers? 

Let us remember what the Constitution makers envisioned for this nation and the liberty of its people, before we are accused of mirroring our own virtues as the Constitution’s burden. Not only is ‘liberty’ lawfully sacrosanct, it emanates from the core on which the Constitution was built, the preamble. From the perception that ultimate sovereignty rests with the people of India, ergo, power is derived from the people. Dr. Ambedkar professed this public-supremacy in his concluding speech in the Constituent Assembly: “Political democracy cannot last unless it lies at the base of its social democracy. What does social democracy mean? It means a way of life which recognizes Liberty, equality, and fraternity…”

Democracy is dynamized with certain minimal and intrinsic rights, a requisite for a free and civilized existence: Liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote fraternity. It is the proverbial truth that without liberty, there cannot exist a democracy. 

Liberty as we know it

The knight in shining armor of this proverbial truth is Article 19, which guarantees to the citizens of India, six paramount rights. While Liberty is also covered under Articles 20, 21, and 22, Article 19 is distinctive, as it speaks of ‘basic liberty‘ as opposed to ‘personal liberty.’ 

The six rights under Article 19, briefly understood are: (1) Freedom of speech and expression: (Article 19(1)(a)), is indispensable and allows for open channels of free discourse; (2) Right to assemble (Article 19(1)(b))peaceably and without arms; (3) Right to form associations or unions: Article 19(1)(c)  The need for collective strength and such freedom is upheld under this right. (4) Liberty to move freely (Article 19(1)(d)) and (5) reside and settle in any part of India ( Article 19(1)(e)) These rights illustrate the notion that India is one indivisible unit, territorially (and metaphorically). (6) Liberty to practice any profession or carry on occupation: (Article 19(1)(g)) and an individual cannot be forced to accept a livelihood.

How is Liberty statutorily restricted?

While Liberty is inviolable, the freedoms guaranteed by Art. 19(1), are not absolute, as no right can be. As was observed in Gopalan vs. State of Madras (1950)There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.”

Thus, the rights under Article 19 may be regulated by laws made by Parliament or State Legislatures (Clauses (2) to (6) of Article 19), as ‘reasonable’ restrictions. So far as (i) the freedom of speech is concerned, the right can be enjoyed subject to the interests of’ ‘security of State, friendly relations with foreign states, public order, decency, morality, sovereignty and integrity, or concerning contempt of Court, defamation or incitement to offense.’ (ii)The right to assemble, may be restricted in the interest of public order, sovereignty and integrity of India; (iii) right to form associations or unions, impose the same limitations along with an additional ground of morality; (iv) right to move freely and (v) the right to reside and settle in any part, is also limited to reasonable restrictions in the interests of the general public or Scheduled Tribe; (vi) right to practice a profession or run a business may be restricted in the interest of the general public. The State may also make laws regarding necessary qualifications or to create a monopoly in its favor.

However the right is paramount and restrictions are auxiliary and the burden is on the authority to justify the restrictions. 

Reasonable restrictions

While the restrictions  are legally sound, how then, do we judge their ‘reasonability’

Since society was created and the chaos that followed, there is a pursuit to bind an individual under the realm of civilization. No one exists in society with the (arrogant) expectation of living in complete freedom, and minimum restrictions become imperative for harmony to prevail and anarchy to desist. Judicial precedents establish that there is no mathematical paradigm to determine these restrictions.  However, there exists a general understanding. While analyzing a restrictive legislation, reasonability and proportionality come into play. These help analyze the legislation in two ways, whether ‘directly’ as infringing fundamental rights or whether they are ‘proportional’ to constitutional limitations.  

Over time, the courts have taken care not to be misguided by the apparent ‘intention’ of legislation but surgically manoeuvre through elements of public interest, rights and remedy. In effect, the burden is on the State to prove there is no proximate nexus to the infringement of Fundamental Rights. Another yardstick is to see whether the legislation passes the test of public interest, such that whether or not it upholds the Directive Principles of State Policies. The courts are to prudently evaluate the effect of the legislation, however ‘noble’ its intention. 

Constitution as the Supreme law

The Constitution is the supreme law of the land and permeates each institution in the country. This unassailable supremacy is enunciated in Minerva Mills v Union of India, as, “People of the country, the organs of the government, legislature, executive and judiciary are all bound by the Constitution, which is the paramount law of the land, and nobody is above or beyond the Constitution.” Separation of power was established, while denominating the Constitution as the only sovereign, beyond all else. 

The courts have carried the weight of this supremacy with great diligence. In India, overpopulated and developing, it is a persistent concern that exercising the liberty of one may infringe the liberty of another. The Supreme Court, through its powers of judicial review, can audit whether a law surmounts its limits set by the Constitution. This constitutionally derived power enables the court to protect liberty, as in Anuradha Bhasin v Union of India, where it was held that reasonability of state actions shall be measured against the scale of proportionality. 

Recently, Calcutta High Court set aside a ‘Leave India Notice’ issued by the government to a Polish student in India, involved in the anti-CAA protests, by equating the administrative action to a ‘paranoid overreaction’. Similarly, the Bombay High Court  upheld the freedom of conscience of a school teacher, a non-believer and nullified his suspension for not folding his hands during school prayers. These illustrations embody that restraint of liberty may be warranted, but constitutionally powered checks on the restraint, prevent the becoming of a despotic dictatorship.  

Conclusion: The need to find a balance

What we need is to prevent the tilting of the scale of checks, towards the side of social control. In the recent past, arguably, this tilt has been deepening. Whether it is the excessive use of force against anti-CAA protesters, application of the UAPA on student activists on flexible degrees of suspicion, excessive force against farmers protesting against the farm bills, hastened passing of controversial laws without proper discourse, recurring contempt petitions; without getting into the merit of these issues, what we observe is a marked rise in the shushing of the common man.

While the responsibility towards liberty is not an isolated one, the courts are duty-bound to register their intervention when such liberty is in peril. Consider the Covid-19 situation and imposition of a ‘lock-down’ in light of migrant workers and traders. While the argument isn’t to say that the State cannot put such a restriction at the eve of a pandemic, it is towards questioning a means-ends relationship between the measures and the goal it sets out to achieve. Recall that Covid-19 spreads through close proximity and public health guidelines require ‘social distancing’. An observation of a rapid, all-pervasive ban on individual movement – a restriction on the freedom of movement and trade, which has varying degrees of effects on differently placed citizens, also soliciting selective ostracization  and excessive force, would be arguably, disproportionate.

It is easy to overlook technical niceties in the face of a crisis when our own head isn’t in the lion’s mouth, but isn’t that where the courts step in? 

Notably, the guidelines under the National Disaster Management Act, 2005, or the Epidemic Diseases Act, 1867, themselves largely impose a ban on gatherings and not individual movement. These restrictions can be traced to Article 19(5) and 19(6) under the concern of ‘general public interest’. However, we need the courts to prevent disproportionate restriction in the pursuit of ‘general public interest’ at the cost of that very public. 

While liberty cannot be unrestricted, we cannot undermine the sanctuary of balance. 

Guest Post: Roadblock in Protection of Transgenders in India

[This is a guest post by Manasi Bhushan and Gauri Nar. The first part of the article can be accessed here: Path to the recognition of the Third Gender]

Legal Provisions regarding Sexual Crimes against Transgender

Even after legal recognition as a Third Gender, transgenders are lacking legal measures to safeguard their community from sexual abuse. Transgenders’ right to equality, right against discrimination and right to life guaranteed by Article 14, 15 and 21 respectively of the Indian Constitution are violated due to lack of gender-neutral rape laws in the country. Section 375 of Indian Penal Code (IPC) states “A man is said to commit rape if he penetrates his penis, any object, and any part of his body to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person”. This Section clearly recognises women as a victim and has ignored transgenders as victims. Likewise Section 354, 354A, 354B and 354C of IPC deal with other sexual offences which are women-centric in terms of recognising them as victims and have blatantly ignored transgenders as victims. Thus the criminal jurisprudence has failed to provide enough protection to transgenders against sexual abuse. 

Legislature passed The Transgender Persons (Protection of Rights) Act, 2019 which came into force on 5th December 2019. As the name suggests, this Act aims to protect the rights of the transgender and is meant for their welfare. However, many trans activists opine that the Act is detrimental to them as the bill does not specifically differentiate between transgender, transsexuals, intersex persons and genderqueer. The Bill has also not provided any self-identification rights, as was promised by the National Legal Services Authority v. Union of India [(2014) 5 SCC 438] judgment. They have removed the word ‘screening committee’ from the Act, however, the Act states that while issuing a gender identity certificate to a transgender the District Magistrate has to verify the required documents with the medical officer who eventually has to examine the body of the transgender which is nothing but practically a screening committee. Secondly, a transgender person has to get an identity certificate produced from a District Magistrate by submitting the required documents which include Sex Reassignment Surgery certificate and other related documents. Such surgery and procurement of the certificate wherein it requires approval from multiple authorities clearly invades the privacy of a transgender person. Also, there is no mention of a redressal or recourse in the eventuality of a District Magistrate refusing to grant such certificate. Moreover, the Bill does deal with the civil rights of transgenders such as Marriage, adoption, property rights and few more thus depriving them of their fundamental rights. As per Section 18(d) of the Act, it is stated that whoever sexually abuses a transgender will face imprisonment for a term of six months or two years considering the scenario. However, on the contrary, a punishment of imprisonment for life or death is granted in cases of rape of a woman. Such disparity in punishing a rape convict of transwoman and cis-woman is clearly violative of Article 14, 15 and 21 of the Indian Constitution. Unfortunately, Indian laws lack provisions for safeguarding trans-community against sexual abuse and violence. 

Judicial Activism in Granting Equal Protection for Transgenders

A petition was filed in the Hon’ble Supreme Court of India seeking equal protection of transgenders against sexual violence and for Anti-Discrimination Bill penalising discrimination and harassment on the basis of gender. This plea was also filed to seek gender-neutral laws for sexual harassment. This petition challenged the constitutional validity of Section 354A of IPC that is outraging the modesty of a woman as it does not include transgenders as victims of sexual harassment and therefore are violative of Article 14, 15 and 21 of the Indian Constitution. The petitioner in the said petition proposed adoption and implementation of the Universal Declaration of Human Rights to protect the fundamental rights of the third gender by giving them equal protection before the law.

 The said petition is pending for disposal before the Supreme Court wherein notice was issued to the Union of India after the judges found a good case of the petitioner.

Comparative Analysis of Global Legislation on Transgender Rights

Like India, Brazil is also a developing country. In the year 2018, Supreme Court of Brazil held that there was no need for transgenders to undergo medical surgery or judicial review in order to get their names and gender marked on identification documents changed as per their will and thus giving transgenders equal rights and protections similar to all cisgenders. Pakistan also has a Transgender Persons (Protection of Rights) Act, 2018 wherein there is no requirement for transgenders to undergo any medical and diagnostic surgeries in order to obtain legal recognition or preferred gender identity like in India. Even in developed countries like Canada, transgenders are legally recognized wherein their gender identity and gender expression are included in the Canadian Human Rights Act and the Criminal Code of Canada. In Australia, The Sex Discrimination Act, 1984 prohibits discrimination on the basis of sex. LGBT rights in the Netherlands are one of the most progressive in the world. The Dutch Parliament implemented The Equal Treatment Act, 1994 which bans discrimination on the basis of sexual orientation in employment, housing and both public and private accommodations. A bill was passed by the Dutch Parliament which explicitly add sex characteristics, gender identity and gender expression to the list of anti-discrimination grounds. In 2013, the parliament of Netherlands approved a bill that would allow transgender people to legally change their gender on the birth certificate and other official documents without undergoing sterilization and sex reassignment surgery, same-sex marriage and same-sex adoption. The progressive approach of different countries towards uplifting the transgender community who have been denied equal protection of rights since a long time now is clearly reflected in the aforesaid legislations. India as a developing country should take into consideration the legal provisions of different countries corresponding to transgenders and make gender-neutral laws and give the transgender community the status that any cis-gender is given.

Conclusion

The Transgender Person Protection Bill 2019 is an impetuous work leaving behind many crucial aspects and concerns for the community. The Bill has left many questions unanswered, there are a plethora of lacunae in the bill which needs attention.

The upliftment of the transgender community in India is possible only when the viewpoint of the society towards a trans individual will change. The laws that are made should be in line with the judgement of National Legal Services Authority v. Union of India [(2014) 5 SCC 438] of Hon’ble Supreme Court pertaining to transgender rights. Even after enactment of laws by the government, there is a strong need to educate the common masses about the transgender community so that they develop a sense of respect towards them. Provisions for punishment for violators of the provisions of the bill and the ones discriminating against the transgenders should be incorporated and executed in a swift manner. A speedy mechanism for enforcement of rights including harassment and discrimination of transgender should be incorporated in the Bill. Provisions for addressing the medical issues and providing adequate medical facilities to transgender persons should be mentioned in the Bill. 

The proposed National Council for Transgender Persons does not give adequate representation to the community and as the Central Government shall nominate the members and it shall have great control over it. 

The need of the hour is to spread awareness about the hurdles transgender’s face and the pain they have suffered. It time to put an end to transphobia in the society and help the transgender community to win their battles and get the rights and protection they deserve. 

Guest Post: Path to the recognition of the Third Gender

[This is a guest post by Manasi Bhushan and Gauri Nar]

Introduction

The Constitution of the world’s largest democratic country, India, believes in gender equality and non-discrimination. ‘Equality’ and ‘Justice’ as mentioned in the Preamble are the pillars on which the Indian Constitution rests. Article 14 and 15 of the Constitution being fundamental in nature guarantees equality before the law, equal protection of law and non-discrimination. As per the Census of 2011, India had a total population of 1.21 billion people out of which transgender persons were 4.88 lakh in number i.e. 3.34% of the total population. India, with time, has adopted the western culture however even in the 21st Century, in India gender incongruence is a taboo.

Transgender is an umbrella term that describes people whose gender identity or expression does not match the sex they acquired at birth. It is interesting to note that the existence of such persons is not emanated from recent history, rather the ancient Indian history and mythology recognized transgender persons. For instance, the androgynous composite of Shiva and Goddess Parvati is known as Ardhanarishvara which represents masculinity of Shiva blended with the femininity of Parvati. In Mahabharata, Shikhandi who was born with a female body but recognised herself as a man and later with the help of a Yaksha became a man. Sudyumna, a King was cursed by Shiva and Parvati to be gender fluid and transform from a man to a woman and was known as Ila. The term “transgender” refers to a person whose sex assigned at birth (i.e. the sex assigned by a physician at birth, usually based on external genitalia) does not match their gender identity (i.e. one’s psychological sense of their gender). Some people who are transgender will experience “gender dysphoria,” which refers to psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity. Though gender dysphoria often begins in childhood, some people may not experience it until after puberty or much later. Usually, transgenders face social stigma and are derecognized as persons because of which they are compelled to leave their homes for escaping restrictive families and seek support within their community. They often live in a ghetto-like existence in their own communities.

However, in the year 2014, Transgenders were socially recognized when the Hon’ble Supreme Court of India in the case titled as “National Legal Services Authority v. Union of India [(2014) 5 SCC 438]” gave transgenders an equal status by declaring them as “Third Gender” and granting them their constitutional rights.

Classification of Transgenders

Transgenders or eunuchs are generally addressed as ‘hijras’ or ‘chhakkas’ in India. They can be known by different names based upon different regions and communities, such as-

  1. Kinnar – synonymous for hijras and is usually used in the north of India and other parts including Maharashtra;
  2. Aravani – a regional term for transgenders and is used in Tamil Nadu wherein some of them like to be addressed as Thirunangi;
  3. Kothis – a heterogeneous group, because it refers to biological males showing varying degrees of being effeminate. They prefer to take the feminine role in same-sex relationships, though many kothis are bisexual. Some hijras identify as kothi as well, while not all kothis identify as hijra or even transgender.
  4. Shiv-Shakti – usually used in Andhra Pradesh wherein these are males who are particularly close to a goddess and who have feminine traits;
  5. Jogtas/Jogappas – found in Karnataka and are dedicated to and serve Goddess Renuka Devi.

Other categories of transgenders are Transexuals, genderqueer/non-binary gender which also include individuals identifying as moving between male or female (bigender) and some individuals who identify as beyond gender or genderless (agender) or simultaneously exhibiting multiple genders (pangender). There are also Transvestite or cross-dresser, drag kings and drag queens.

History of Sexual Crimes against Transgender in India

For decades transgenders have been suffering horribly and facing health issues relating to sexual violence. These include rape, stalking, sexual harassment, outraging the modesty, voyeurism, violence (physical, emotional and sexual). Such offences are committed from the childhood of transgender persons. 971 (44.7%) transgenders were reported facing 2,811 incidents of violence i.e. an average of three incidents per person between April and October 2015. The trans community has suffered immensely by being excluded from the definitions of sexual crimes. In a research conducted in different parts of India by a health resource centre ‘Swasti’, it was found that four in ten transgender people experience some sought of sexual abuse before the age of 18 and the trauma continues past their childhood. In most of the cases, the person to sexually violate a transgender is someone known to them, a client, partner or those for whom they are employed as sex workers. Majority of people in our society are transphobic, and therefore lack sympathy towards the community facing sexual violence on a large scale. The police and government officials are the ones imposing tremendous sexual violence on the transgender persons when they approach them for help. A transgender woman stated that the police chase away them (transgenders) whenever they see them, even if they are just sitting and having a chat, Police verbally abuse them and beat them. Another trans woman stated that the police takes rounds and arrests kinnara women for no fault of theirs, assault them and insert lathis into their bodies. Deepak Kumar, a social worker, told about one such incident, where 17 policemen allegedly had “forced sex” with a transgender woman at a police station.

In 2004, in Bangalore, a eunuch was at a public place dressed in female clothing who was gang-raped and forced to have oral and anal sex by a group of hooligans. He was later taken to a police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity. This was brought into light in the landmark judgment of Apex Court in the case titled as Naz Foundation vs. Govt. of NCT & Ors. [2010 CriLJ 94]. Hon’ble High Court of Madras even raised concern in the case titled as Jayalakshmi v. The State of Tamil Nadu [(2007) 4 MLJ 849], wherein a eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he was arrested being accused of theft. In this case, evidence was produced before the court indicating that in police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forced him to have oral sex. This person immolated himself inside the police station and later succumbed to burn injuries. A compensation of Rupees Five Lakh was awarded to the family of the victim.

In 2015, a fact-finding team of activists from the Telangana Intersex Transgender Hijra Samiti found that more than 10 cases of attacks against transgender persons each month were reported in the State, including the murder of Pravallika, a hijra who was brutally attacked. During the interrogation, another hijra was picked up by the police and was humiliated, stripped and detained for four hours while dismissing her plea to be released as she was also HIV positive. Another instance in 2017 occurred in Hyderabad wherein a transgender woman was raped and was attacked with acid. She was the sole breadwinner for her family. A study by the National Human Rights Commission, India found out that 52% of the transgender community faced harassment by their school classmates and 15% from their teachers which resulted in their dropping out from school.

This was the Part I of the two-part series on Sexual Crimes against Transgenders. Stay tuned for the next post by the authors which will highlight the legal provisions for the protection of transgenders and judicial approach towards them.

Scheduled Castes, Creamy Layer and Jarnail Singh Judgment

[Editor’s Note: The Supreme Court’s approach on merit and efficiency of administration in the cases of the reservation is not a correct approach conceptually and philosophically, and such an approach leads to deflection from the values of the constitution and compromise the struggle for constitutional justice. This approach is based on the view that reservations and merit are opposed to each, instead, there is a need to balance the two.]

In the Jarnail Singh v. Lachhmi Narayan Gupta judgment, the Constitutional Bench of the Supreme Court decided two questions of law: one, whether the ‘creamy layer concept’ should apply to Scheduled Caste and Scheduled Tribes, and second, whether there is a need to reconsider the opinion of the five-judge bench in M. Nagaraj v. Union of India which held that ‘the state has to collect quantifiable data showing backwardness of SC/STs’? In this post, the author will analyse the judgment of the Court in Jarnail Singh and discuss the issues which arise from it.

How is it determined that a person belongs to SC/ST Category?

Under Article 341 of the Constitution, it is stated, in clause 1 that, it is the President who shall specify, through a public notification, which ‘castes, races or tribes’ shall deem to be a part of the Scheduled Castes. Further, in clause 2, it is the power of the Parliament to exclude or include any caste, race or tribe from the list of Scheduled Castes. Inclusion or exclusion can be done only through a law made by the Parliament and not otherwise. (See addendum at the end of this post)

Article 335 of the Constitution states that the state shall not be restricted from making reservations in the favour of the Scheduled Castes and Tribes in making appointments to services and posts. The provision also says that the state must ensure the reservations made must be ‘consistently with the maintenance of efficiency of administration’. This brings the controversial argument of merit versus reservations. The Courts have thought of efficiency as a synonym of merit or the marks achieved by a candidate, but this position was philosophically challenged and curated in B.K Pavithra II v. Union of India (the author will analyse the judgment of BK Pavithra II in his next post and discuss more of this issue). Anyhow, it is clear from Article 341 and 335 that only the Parliament, by law, can make changes in Scheduled Castes/tribes list. In the judgment of E.V. Chinnaiah v. State of A.P. (2004), it was held by the five-judge bench of the Supreme Court that the group mentioned under the Presidential List of Scheduled Castes under Article 341 is a ‘homogenous group’ and it cannot be sub-divided by the State governments. But the validity of Chinnaiah is in question after the controversial judgment of State of Punjab v. Davinder Singh which was delivered in March 2020 by another five-judge bench. The Court in Davinder Singh, paragraph 41, held that the list under Article 341/342 is not homogenous and sub-divisions can be made under the list based on backwardness. Both Davinder Singh and Chinnaiah will be reconsidered by the seven-judge bench in future and will determine whether the SC/ST list is homogenous or heterogeneous.

Application of ‘Creamy Layer’ Concept to SC/STs

Justice Reddy in Indira Sawhney v. Union of India held that the creamy layer concept will not apply to the Scheduled Castes and Scheduled Tribes in paragraph 792. The decision and discussion in Indira Sawhney were confined to OBCs and the reservation thereto. The judgment also stated that the reservations would apply to an appointment in the initial stage only, but not in the promotional stages. Hence, there would be no reservation in promotion as per the judgment in Indira Sawhney. Then, the Parliament amended the Constitution and introduced Article 16(4A) and 16(4B) to overrule the promotional aspect of Indira Sawhney. The amended provision stated that nothing shall prevent the state from making reservations in promotion in favour of SC/STs. This was then challenged in M. Nagaraj v. Union of India. The judgment in Nagaraj upheld the constitutional validity of the Amendment but it presented another set of issues like the introduction of the concept of the creamy layer within the scheduled castes and tribes, for instance, the state shall collect quantifiable data to exclude a certain class of people within the scheduled castes/tribes from the benefits of reservation. However, no test was given to determine the quantifiable data.

So what is this creamy layer? The Court in Indira Sawhney permitted sub-classification of OBCs, as backwards and more backwards based on their comparative underdevelopment. For instance, there is a certain threshold, say (hypothetically) if any person has an annual income of more than eight lacs, then he/she will be excluded from the benefits of reservation or say, if a person belonging to OBC category becomes an IAS officer, then he/she will be excluded from the ‘more backward’ category and their heirs will not get the benefit of the reservation. But would that creamy layer concept will apply to Scheduled Castes and Scheduled Tribes? The caste of a person is determined by birth and that cannot be changed, so, even if a person (from SC/ST category) becomes economically and educationally well, then will that ‘tag’ of being an SC/ST as a social stigma will vanish? The author doubts that. This application of creamy layer will make sense if we can assume that “it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example).” But that assumption can be a dangerous proposition and empirically, not sustainable (see here and here). The reservation is afforded to the most backward communities of SC/ST because there is a history of social oppression by the virtue of their group identity. Hence, the list under Article 341 is considered to be homogenous and it should not be sub-divided as creamy or non-creamy as, it was argued by the author here that, “a group right cannot be redistributed since group discrimination cannot be reinterpreted to individual or sub-group rights”. The discrimination faced by the Scheduled Castes/Tribes is not because of their economic standing or job profile, unlike in the case of OBCs.

But in M. Nagaraj, the Court held that “if they (state) wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335.” This allows the state to classify the Scheduled Castes as backward and more backward, inherently creating a sub-classification and a concept of creamy layer. This is where the problem started. Later in 2008, the Supreme Court in Ashoka Kumar Thakur v. Union of India (a reference to the opinion of CJ Balakrishnan) opined that the concept of creamy layer shall not apply to SC/STs and “creamy layer principle is not a principle of equality, rather a principle of identification of OBCs”. But that case again was confined to the matter of reservation for OBCs (as per the concurring opinions), hence this view of Justice Balakrishnan is disregarded by Court in Jarnail Singh.

The judgment in Nagaraj which allow for a sub-classification under SC/STs and the judgment in Chinnaiah which disallows sub-classification under SC/STs conflict with each other. But the Court in Jarnail Singh disregarded the conflict as it held that “Chinnaiah dealt with a completely different problem, apart from dealing with a State statute and not a constitutional amendment, as was dealt with in Nagaraj.” The reasoning in Chinnaiah was whether the state can sub-classify and tinker with the list made under Article 341 and even the Court’s holding in Nagaraj, in essence, dealt with the same thing (the part where the Court opined about ‘quantifiable data’ and creamy layer).

However, the Court in Jarnail Singh held that, fortunately, the proposition in Nagaraj which stated that the State has to collect quantifiable data for SC/STs in contradictory to Indira Sawhney in paragraph 14 and is bad in law. The part about quantifiable data is held to be unconstitutional, but the application of creamy layer principle was still dealt by the Court and in a questionable way. The Court considered the concept of the creamy layer as a matter of equality, not identification (contrary to the opinion of CJ Balakrishnan).

The concept of Creamy layer or the issue of “higher backward groups” among the SCs was dealt with by the Justice Krishna Iyer in State of Kerala v. N.M. Thomas where he held observed that in paragraph 124, reservation “benefits, by and large, are snatched away by the top creamy layer of the ―backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.” Further Justice Iyer observed that certain group among the SCs always want to wear the tag of “weaker sections”. But lastly, Justice Iyer observes that a lasting solution can come only if there is an “improvement of the social environment, added educational facilities and cross-fertilisation of castes by inter-caste and inter-class marriages sponsored as a massive State programme”. If that is the case, then unless the social group identity of SCs and STs are eradicated, until then there must not be any sub-classification and application of creamy layer because the excluded group, socially and politically, will be in a disadvantaged position. The social change is necessary, but not by tinkering with the scheduled castes list under Article 341 or by excluding a particular group. Economy and education do not annihilate a person from SC category, as there are plenty of cases where the educated group among the SCs is still discriminated and oppressed. Hence, I respectfully disagree with Justice Iyer’s observation on the creamy layer as this is an elitist way of thinking about reservations. Further, in Vasanth Kumar judgment (1985), justice Chinappa O Reddy remarked, “How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?” He disagreed with Justice Iyer’s understanding of reservation and observed exclusion of creamy layer concept from SC/STs. As Professor Anurag Bhaskar** and Surendra Kumar argue, “The Indra Sawhney judgment, which was deciding all aspects related to reservations authoritatively, chose not to apply “creamy layer” criteria on the SCs and STs. In that way, Indra Sawhney can be said to have endorsed Justice Chinnappa Reddy’s proposition in KC Vasanth Kumar and not that of Justice Krishna Iyer in NM Thomas.”

The Court in Jarnail Singh, however, relies on the observation in N.M Thomas, but fails to consider the observation of Justice Balakrishnan in Ashoka Kumar Thakur and subsequently rejects it. Does this create confusion as to whether a view of a particular judge is over and above the view of the subsequent judge? This needs to be reconsidered by a larger bench. Furthermore, the Court suggests that exclusion a sub-group from the benefits of reservations will not tinker the list under Article 341, but that argument does not convince the reader as there is a lack of reasoning. In contrast, Justice Hedge in E.V. Chinnaiah held that “therefore, any executive action or legislative enactment which interferes, disturbs, re-arranges, re-groups or re-classifies the various castes found in the Presidential List will be violative of the scheme of the Constitution and will be violative of Article 341 of the Constitution.” Is the Court in Jarnail Singh by allowing re-arrangement or classification of SCs as creamy and non-creamy layers, in the name of harmonious construction of Article 14, 16, 341 and 342, allowing an unconstitutional action, as per Chinnaiah? We never know until a larger bench decides and settle all the connected issues concerning sub-classification and creamy layer of SC/STs.

Conclusion

The Court in Jarnail Singh rightly held that there is no need for quantifiable data to be collected by the state in providing reservations. However, the Court’s observations about creamy layer application to SC/STs is seriously flawed and needs to be revisited. Justice Nariman went on to say that the Courts can apply the creamy layer formula to SC/STs, in paragraph 16, which is a judicial overreach and must be reconsidered by a larger bench. The basis of the list prepared under ‘Scheduled Castes’ is based upon the social stigma that exists in the society, in B.R. Ambedkar’s own words, the caste is based on an “ascending scale of hatred and a downward scale of contempt.” In a society like this, is it even making sense to apply the principle of the creamy layer to a group whose identity is based on discrimination and a “fatal accident” of their birth? The author refuses to accept the proposition. The judgment in Jarnail Singh suffers from a problem that it shifts the jurisprudence on the reservation and does not back it up with ‘sufficient reasoning’. It needs to be reconsidered by a larger bench.  

* Addendum: When a person from any caste (for eg: Jatav, Chamaar, Ahir, Gujjar etc.) is included in the list created by the President under Article 341, then that group attains “a new status by the virtue of Presidential notification”. The word ‘caste’ under Article 16(2) does not include Scheduled Caste, that is why the state can treat SC/STs differentially to ensure substantive equality in fact. To support this argument, reliance is placed on the judgment of NM Thomas v. State of Kerala (paragraph 107).

** I would like to thank professor Anurag Bhaskar for introducing me to his brilliant paper, after the publication of this post, on inconsistency in Nagaraj and Jarnail Singh judgment as both of them, according to him, are ‘per incuriam’. I would suggest readers go through his paper: here.