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.

Horizontal Reservations, Merit List and the Supreme Court

[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.]

The decision of the Apex Court’s full-bench in Saurav Yadav v. State of UP (2020) discusses the horizontal and vertical reservations. In this post, the author will be discussing the judgment of the court, which in his opinion is correct, and vertical and horizontal reservations.

The facts of the case are: the State Government kept criteria that if a male candidate belonging to SC/ST/OBC Category secures higher marks than the general/unreserved cut-off list, then he would be selected as under the unreserved category and it will not affect the reserved quotas. But the same yardstick does not apply to the female candidates appearing for the same exam as female candidates have their horizontal quotas in their respective categories. Hence, the aggrieved parties approached the Court to enforce their rights. The issue which arose, in this case, is whether the OBC category applicant who secured more marks than the general category female candidate must be selected as under unreserved-female candidate or not. To answer this issue, let us try to understand the concepts of Vertical and Horizontal Reservations.

Vertical and Horizontal Reservations

Justice Reddy in the case of Indira Sawhney v. Union of India (812) explained the concept of vertical and horizontal reservation as:

“The reservations in favour of SC/ST/OBC [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations— what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of a backward class of citizens remains — and should remain— the same.”

The reservations made for physically handicapped, women, etc. is made under Article 16(1) or 15(3)—which are ‘horizontal reservations‘ and the reservations made in the favour of SC/ST/OBCs are under Article 16(4)—which are ‘vertical reservations‘. The candidates belonging to the horizontal category, such as women, physically handicapped are proportionately adjusted in the vertical (social) quotas, either in the general or reserved categories (Swati Gupta v. the State of UP, in 3). The Court further explained, filling up seats, in the case of Anil Kumar Gupta v. the State of UP, that there are two types of horizontal reservation: overall reservation and compartmental reservation. In overall reservation the procedure for filling up the seats is as follows (18): “The proper and correct course is to first fill up the OC quota (50%) based on merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied — in case it is an overall horizontal reservation—no further question arises.” But if there is a compartmental reservation, that is, to say the reservation for SC/ST/OBC is 50% and general is 50%. Then, in total female candidates have 30% reservation. That 30% reservation, in the compartmental reservation, is to be reserved proportionately in different categories. For example: out of 100 seats, 15 seats are reserved for SC category, 7 for ST category, 27 for OBC category and 51 for the unreserved category. But now female candidates have 30 seats and they can be from any category, so in a compartmental reservation, a defined number of seats are allocated for women in each category, for instance, 15% of the 30 seats for women (approx. 4 seats) are adjusted within the SC Category. So, after horizontal reservation, under SC Category out of 15 seats, 4 are reserved for SC-Female candidates. If the seats to be reserved for women are 4 in SC category out of 15, then SC-vertical reservation quota will be, first, filled by SC candidates (both women and men), if in those 15 seats, there are already 4 women, then there is no need to apply horizontal reservation for SC category, but if there are not 4 women candidates based on merit, then male candidates (last in the list) need to be removed to fulfil 4 women seats (R.K. Daria v. Rajasthan Public Service Commission, 10). But the question herein arises that whether the meritorious candidates from reserved categories be allowed to compete in the open category? If yes, then what about those meritorious candidates who are reserved vertically as well as horizontally?

Can horizontally and vertically reserved candidates compete in the open-horizontally reserved category?

The Supreme Court in the case of R.K. Daria explained the nature of vertical reservation as (9):

Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class.

It is not like communal reservations where a candidate of a particular community will compete for a particular reserved seat only, the candidates from SC/ST/OBC, if they choose to compete in the open category, then their selection will not affect the existing reserved seats under SC/ST/OBC categories (Indira Sawhney, 735). Nonetheless, will this principle apply to horizontal categories as well. Now, the author will analyse the precedents related to horizontal reservation and merit lists.

In the case of Megha Shetty v. the State of Rajasthan, the  Rajasthan High Court in 24 clarifies that if a candidate belonging to reserved category (woman) secures higher marks than a candidate belonging to general category (woman), and therefore, finds a place in select merit list meant for general (woman) category, then it is not migration from reserved to unreserved. That woman candidate will be selected under the unreserved category only. This proposition was accepted in another case of Neelam Sharma v. the State of Rajasthan by the High Court of Rajasthan and when that case went to appeal in SLP No. 4312 of 2016, it was rightly dismissed by the Apex Court. A candidate belonging to backward class cannot be restricted from competing under the ‘open category’, irrespective of vertical or horizontal reservation. The open category means ‘open to all’ and it cannot be interpreted otherwise (Bombay High Court in Asha Gholap v. The President, DSC in 32). This will not diminish the seats reserved for SC/ST/OBC in their respective categories (Charushila v. the State of Maharashtra, Bombay High Court)

Application to the Present Case

In the present case, where the applicants (women) are being denied selection in the open categories, unlike male candidates, is discriminatory against them as the same yardstick is not applied to them as applied to male candidates, which is also held to be discriminatory and irrational in the case of Kanchan Vishwanath Jagtap v. Maharashtra Administrative Tribunal (Bombay High Court, 2016) which relied on Indira Sawhney. Even in compartmentalized reservations, the open category is for all, irrespective of their social category. But the vice versa is not true, that means, an open category woman candidate (general) cannot compete on SC/ST/OBC seats reserved for women.

Surprisingly and unfortunately, the Allahabad high court in Ajay Kumar v. the State of UP (2019) has taken a different view from above, stating that: “To our mind, inter-se merit of women has no role to play in the implementation of horizontal reservation as the socially reserved candidate (SC, ST, & OBC) seeking the benefit of reservation of special category (women) cannot claim adjustment in the open category.” This view was also taken by Uttrakhand High Court. This means that at the stage of providing horizontal reservation, the open general category “is to be construed as category meant for candidates other than those coming from any categories reserved vertically, that is, ST/SC/OBC.”

Further, this will lead to unequal treatment of meritorious candidates who are on the same footing. This will create inefficiency and chaos as the less meritorious candidates will be selected, as witnessed in the present case. Further, this view is not supported by any precedents of the Court and hence, it is discarded by the Supreme Court in the Sourav Yadav (present case) as ‘irrational’. Whereas the decisions of the Rajasthan and Bombay High Courts are declared as correct and rational.

Conclusion

In the present case, the applicants are more meritorious than those selected under the open category (woman), but still, the government disregarded their claims and said they can only and only compete under their vertically reserved category (that is, OBC). The Court held that in ¶30,

 “Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates [in reserved categories—SC/ST/OBC] will certainly be opposed to principles of equality.

By applying the principles enunciated in the case of Megha Shetty, Charushila and Indira Sawhney, the apex court in this case (Saurav Yadav) held that denial of the claims of the applicant is unconstitutional and they must be selected under the open category as they have secured more marks than the cut off list prepared for the open category. Furthermore, the correct procedure for selecting candidates, in future as per the Supreme Court, in the final merit list (consisting of open/SC/ST/OBC) is best illustrated by the 2019 Gujarat High Court in the case of Tamannben Ashokbhai Desai v. Shital Amrutlal Nishar as it deals with every possible situation that could arise in the future about the allocation of seats to horizontally and vertically reserved-meritorious candidates (this procedure will be dealt by the author in the coming posts). Therefore, this full-bench judgment of the Supreme Court in Saurav Yadav clarifies the position of selecting candidates who are reserved horizontally and in my opinion is correct.

[The author would like to thank Aatika Singh for her comments.]

The Legality of Anti-Conversion laws: A different perspective

[This is a post by Surabhi Srivastava, Contributing Editor]

What do you understand of anti-conversion law? That person cannot change their religion? The answer is ‘No’; it means nothing close to that. An anti-conversion law never bans ‘Voluntary Conversion’, which means if you are with your free will converting your religion then; the anti-conversion law will not ban such a conversion. Furthermore, it only applies a ban on ‘Involuntary’ and ‘Forced’ conversions. So basically, what anti-conversion law will do is-it will punish those persons who are forcing someone to change their religion or preventing someone who voluntarily wants to change their religion.

The advent of anti-conversion law

Even at the pre-independence stage, anti-conversion laws were present; they were introduced by the Hindu Princely States. Post-independence also multiple laws were enacted but none of them was successfully implemented. Most of the anti-conversion laws that prevailed were for Hindu community so that they cannot change their religion to adopt another religion. In India, during the British rule from 1930-40, to restrict the conversion of Hindus, several laws were adopted by the Hindu Princely states as they were anticipating identity crises for Hindus amongst the British missionaries. However, in present India also, before the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020, already 8 states had adopted anti-conversion laws.

But why is such a law not implemented all over India?         

That is because the subject matter is listed under List II of the Seventh Schedule of the Constitution and hence the Union Parliament cannot make law for it to be applicable on the whole of India. However, the centre has supported the anti-conversion laws. But where does the issue lie with respect to anti-conversion laws? Well! Most people think that the law targets Christianity because there has been a buzz that continuous attempt has been made to convert Christians into Islam or Hindus to Christianity. In 1980 also laws were enacted to protect the Christian community and hence Freedom of Religion or Anti-conversion bills were passed by the government. These laws are under the threat of being abused by communal forces.

Must-Know Incidences on Anti-Conversion Law

Rev Stanislaus vs. Madhya Pradesh– the Apex Court had discussed the aspect of Propagation of Religion under Article 25 of the Indian Constitution, and it said that propagation does not extend to the idea of inducing or forcing someone to convert to your religion. A person must have a free own will to adopt another religion.

In the case of Sarla Mudgal vs. Union of India Court had further elaborated on the issue of conversion by free will. It said that if a Hindu person is converting to Islam for the mere purpose of engaging into limited polygamy then that is not a good conversion. Perhaps here the conversion was done with free will and without any inducement or promise but that aspect of having faith in the religion was missing.

So basically, everybody has the right to convert but not without faith the religion in which they intend to convert. But one cannot compel another to convert into their religion at all in states where anti-conversion law is applicable.

The United Nations Declaration of Human Rights has recognized religious conversion as a human right; therefore, technically anti-conversion law does not violate freedom of conversion. Hence we all have a right to choose our religion considering our faith and belief.

Analysis of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020

On the face of it, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020 (for brevity Act) has been criticized for having understood has violative of the guarantees of the Constitution but as explained above, the Act is in consonance and not really in contravention of the Constitutionals rights of the people.

Section 3 of the Acts says ‘Prohibition of conversion from one religion to another by misrepresentation, fraud, undue influence, coercion, allurement or marriage’. Broadly segregating the provision into two segments- first being   Prohibition of conversion from one religion to another by misrepresentation, fraud, undue influence, coercion, allurement and second being Prohibition of conversion from one religion to another by marriage. The former has been understudied and the later has been over-studied and termed as ‘Love jihad’. We need to understand that this act or for that matter any Anti-conversion law does not target one or two religion(s).

Article 25 of the Constitution uses the word “freely” which would mean that conversion propagated by any means which does not include free will is not a good conversion. Hence we can say that the same deduction is given in an elaborative and conclusive manner in the Act also. The Act nowhere restricts voluntary conversion, Section 3 contains the words misrepresentation, fraud, undue influence, coercion, allurement which are totally contradictory to that of ‘voluntary’. However, it also says ‘by marriage’, the meaning of which comes across as immediately after marrying a person out of one’s religion, their own religion would change in their spouse’s religion automatically. Which is not the correct interpretation and hence the laws need to throw clarity on this point.   

Coming to section 6 of the Act, the main heading of which states “Marriage done for the sole purpose of Unlawful conversion or vice versa to be declared void”. The provision is nothing new to the nation since many states have such a law already implemented in their states a similar law, hence Uttar Pradesh merely being a new addition to it. Free consent is one of the prime requirements to enter into a marriage and there is no wrong in declaring any marriage as void if the intention behind solemnization of that marriage is mala fide. And if the conversion is made with a good faith then the provision under Section 8 of the Act is also justified because no person will have a sudden urge to switch religions, the belief in the religion will develop eventually and hence there seems no harm in the 60 days’ advance notice demanded under the Act. In a way, it is a good law, because once the conversion takes place after due inquiry of the Magistrate, there will raise no question on the validity of such conversion.     

Section 3 indicates conversion from “one religion to another religion” these religions include all the religions in the country. Hence making it a centric issue between Hindus and Muslims is a threat to the secularity of the country. The term “Love-Jihad” has taken a popular turn owing to this misconception. Love Jihad or Romeo Jihad is an Islamophobic conspiracy theory alleging that Muslim men target women belonging to non-Muslim communities for conversion to Islam by feigning love[i]. Mere speculation cannot question the validity of the law altogether. And if at all the purpose the activity of unlawful activity is taking place then the Acti-conversion laws are good law in that case.     

The act may have nuances but the objective and nature of the act are justifiable and for the public good. Nevertheless, Article 25 is expressly subject to public order, health and morality.

Constitutionality of the 1975 National Emergency and the 44th Amendment

On 24th June 1975, the then Prime Minister Smt. Indira Gandhi and her cabinet declared emergency. The fundamental rights were suspended by subsequent orders and several laws were made to detain citizens and opposition. The abuse of power of the office of the Prime Minister was at the peak and the democratic index was buried ten feet under. The rubber stamp on the abuse of power and curtailment of fundamental rights was given by the Hon’ble Supreme Court in the case of ADM Jabalpur v. Shivkant Shukla. Recently, a petitioner has approached the apex court with a plea to declare the 1975 Emergency as unconstitutional and asked for compensation as well. But the important question here is: Was the Emergency unconstitutional?

Constitution before and after the 44th Amendment

The emergency was declared in 1975 and the horrors of emergency were (somewhat) crucified by the 44th Amendment passed in 1978 by the subsequent government. Before the amendment, an emergency could be declared because of war, external aggression or ‘internal disturbance’ and the 1975 emergency was declared due to internal disturbance. It was the phrase used in the constitution which was vague and broad. It was kept open-ended as an internal disturbance was not defined. Hence, the abuse of power was a possibility. With the amendment, the phrase internal disturbance was replaced with armed rebellion which was more restrictive in its interpretation than the previous word. Earlier, the prime minister alone could have taken a decision with regard to emergency and there was no need to have the consent of all the cabinet ministers and there was no need to give the consent in writing to the president. This was done by Indira Gandhi where she overlooked the differing views of the ministers and many of the ministers were not even present when the decision was taken. But later, they were presented with a fait accompli. It is to avoid such a situation in future that Article 352(3) was introduced through the amendment.

 Furthermore, before the amendment, the emergency ceases to operate (except when it is a proclamation revoking the previous proclamation) at the expiration of two months [which is now one month]. The legislature keeps a check and balance on the executive, hence, the time period was reduced to one month. Another significant safeguard introduced by 44th amendment is to lay down that a resolution approving the proclamation of emergency has to be passed by each House by a majority of the total membership of each House and not less than two-thirds of the majority of the members present and voting in each House (Article 352(6)). It brought a wholesome safeguard. Moreover, through 44th amendment the question whether the emergency should continue in force or not must periodically come before both Houses which was not the case before as the executive could have extended the emergency based on its own whims and fancies. Another safeguard introduced by the 44th Amendment is that the President is obliged to revoke a proclamation of emergency issued under Article 352(1) if the House of People passes a resolution disapproving the same (Article 352(7)). Another invention that was incorporated was the clause 8 in Article 352: where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given, of their intention to move a resolution disapproving the proclamation of emergency, to the Speaker if the House is in session or to the President, if House is not in session, a special sitting of the House is to be held within 14 days from the date on which such notice is received by the Speaker or the President, as the case may be. The underlying idea behind amending Article 352 by the 44th amendment is to ensure that what happened in 1975 is not repeated again.

The horrors are put to bed by the amendment. Even exorcism of the phantom of ADM Jabalpur is done by the Puttaswamy Judgment.

Supreme Court and the hearing

On 14th December, Senior Advocate and the Queen’s Counsel appeared for the petitioner who filed the plea to declare the emergency as unconstitutional and had argued that “this abuse of power was so enormous, it has scarred our country. Your lordships must declare that the emergency proclamation was wrong”. It is correct that the abuse of power during the emergency was colossal but can the Court hold that what is done through the various articles of the constitution was unconstitutional? Indira Gandhi used the vaguely framed provisions of the Constitution to exploit the fundamental rights and the Court gave the stamp. The proclamation of emergency was according to the Constitution and it is interesting to witness what the Queen’s Counsel would argue in the Supreme Court of India. The violation of Fundamental Rights could have been prevented if the Court has not ruled that ‘Article 21 is the repository of Rights’ in the ADM Jabalpur.

Strangely, instead of dismissing the petition, the Court has issued a notice to the Government to “to see whether a simpliciter declaration, something which is feasible or desirable after a passage of time and issue, restricted to that aspect.” A declaration, if done, might complicate a lot of actions of the previous governments were which were later rectified by the subsequent amendments to the Constitution. It will lead to a number of petitions being filed in the Supreme Court. On the other hand, the Supreme Court already has a number of issues which are pending before it, for example, the case of the electoral bonds, abrogation of Article 370, CAA etc., but the Court chose to hear this case which has no impact whatsoever in contemporary times. The pending cases are important and are required to be heard with immediate effect. To conclude, the heavens will not fall if the Supreme Court will not hear this plea which seeks to declare the 1975 emergency as unconstitutional.

Remembering the Drafting of an Infallible Preamble: An Anatomical Anchor to The Constitution of India

[This is a post by Diksha Dadu, Contributing Member]

Introduction

“The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is key to the Constitution. It is a jewel set in the Constitution ”, said Pundit Thakur Das Bhargav, Member of Constituent Assembly. 

Over the centuries, the singular truism which is well recognized is that the guidelines or the laws to be enforced cannot be mired in time and need to evolve so as to be relevant to the prevailing social and moral context; and in these times of rapid development, our Preamble manoeuvres itself into an anchor, providing a safety valve against majoritarianism and authoritarianism. The Preamble of our Constitution imparts to constitute India into a Sovereign Secular Democratic Republic and vows to secure to all its citizens’ Justice, Liberty and Equality while assuring the dignity of the individual and the utmost unity and integrity of the Nation.


While analyzing the anatomical nature of Preamble, it is vital to understand the Constituent Assembly Debates (for brevity CAD) on the structure of the Preamble which commenced from 17th October 1949, insinuating especially the declaratory, descriptive, objective and the invocative part. Dr B.R Ambedkar profoundly advocated the correctness of the declaratory part which has been borrowed from the Constitution of USA, stating that this declaratory part separates itself from the other three parts and could be understood by a layman. Certain arguments in the CAD on the objective part were the replacement of the term ‘republic’ with ‘state’, adding the word ‘independent ‘ or replacing ‘sovereign’ with it. Most importantly, the descriptive part enumerates the basic principle of our Constitution including justice, liberty, equality, fraternity as basic jewels of our Preamble. Next proposal was made for the invocative part on inclusion of the phrase ‘in the name of God’ and ‘Mahatma Gandhi’. However, such frivolous proposals were rejected in the CAD. Thus, the history of the making of Preamble is drastically escalated, for the constitution is the background to foreground the Preamble.

Further, I will be dealing with the Nehruvian Approach which paraphrased the resolution regarding aims and objectives of the Preamble, including the criticisms to his draft resolution thereof. Also, I will be enunciating upon the emergence of basic structure doctrine and amendable nature of Preamble with reference to landmark judgments. 

Nehruvian Resolution: Aims & Objectives of Preamble Objectives Resolution 

On 13th December 1946, Pt. Jawaharlal Nehru modified the earlier declaration from ‘freedom of thought, belief, vocation, association and action’ to a more precise declaration. The new phrase ‘freedom of expression, faith, and worship’ was added to Nehru’s Objectives Resolution. These freedoms were highlighted and adopted in the Preamble ad rem while discrediting the previous declaration. These ‘Objectives Resolution’ were considered momentous for two reasons. Firstly, it traced the defining ideals of the Constitution of Independent India, and secondly, it provided the framework within which the work of the constitution-making was to proceed. After eight days of debates and discussions, the resolution was adopted on 22nd January 1947 and came into effect from 26th January 2020. 

It is pertinent to mention the eminence of the resolution that some members of the Constituent Assembly suggested this resolution of ‘utmost importance’ to be passed on 26th January since, on this day, 1930 Nehru declared ‘Complete independence as India’s moto’. However, Pandit Nehru objected and stated the Constituent Assembly was obligated to complete its work as soon as possible. This causal act if irresponsibly executed would not just have slowed the pace of the making of the Constitution but would also be another defiant which was once committed when there was a two month lag between the date of adoption mentioned in Preamble and the date that India celebrated Republic Day.   

Certain later developments indicated that the Nehruvian Objectives Resolution took the form of Preamble in the latter stages of the CAD which was incoherently modified as a result of partition and political changes. Finally, the Preamble emerged and settled with the expression what we see today except for the words which were added by consecutive amendments. 

Basic Structure Doctrine vis-à-vis Amendment of Preamble: Journey from Re Berubari Union to Kesavananda Bharati Case 

The 7-judge bench in the case of Re: Berubari Union AIR 1960, observed that the Preamble manifests the common and general objective of the various provisions of the Constitution of India, which in turn is the principal key to the minds of the founding fathers and their intent while drafting the Preamble and the Constitution thereof. It was reintegrated by the assenting majority judges that whenever there is any ambiguously or hesitancy with respect to the true meaning of a particular article of provision, then in those times of crisis, the glorious Preamble must be referred to and assistances could be taken from the aims and objectives. However, even though this judgment described and identified the significance and utmost importance of the preamble, the Hon’ble Supreme Court failed in interpreting the true nature of the Preamble and its relationship towards the Constitution. The Hon’ble Supreme Court while upholding and denying the Preamble as part of the Constitution, also added that Preamble is not the derivation to prohibit the power, which is stated in the Constitution and held that Preamble is not enforceable in the Hon’ble Courts.  

Moving forward, the question of whether the Preamble can be amended or not? Whether it is part of our Constitution was again challenged in the well-known case which was headed by a 13 judge bench having original writ jurisdiction, the glorious Kesavananda Bharati v State of Kerala (1973). The Hon’ble Supreme Court rejected the judgement given in the Berubari Case and held it to be erroneous while deciding an issue of utmost importance in Constitutional law. Further, the Hon’ble Apex Court held that in fact ‘Preamble is an integral part of the Constitution of India’. The Court also stated that  Preamble is neither a source of power nor a source of limitation and has an immense consequential responsibility while interpreting provisions of statutes and even the provisions of the Constitution. To add further, the issue of whether preamble can be amended was raised in this case can be understood in the words of  D.G. Palekar, J. in Kesavananda Bharti case. He held that the Preamble is a vital part of the Constitution and, therefore, is amendable under Article 368 of the Constitution. Hence, the Hon’ble Supreme Court while deciding the matter beforehand upheld that Preamble can be amended, if not, then the harmony of the Constitution could be disturbed and unsettled. The Apex Court further held that the Preamble could be amended, however, subject to the condition that no amendment is done to the ‘basic features of the Constitution’.


Furthermore, the rule of basic structure doctrine which was laid down by the Kesavananda Bharati case was followed in S.R.Bommai v. Union of India (1994) and it was stated that:

1. The Preamble indicates the Basic Structure of the Constitution

2. A Proclamation under Article 356(1) is open to judicial review on the ground of violating the basic structure of the Constitution.

3. It follows that a proclamation under Article 356(1), which violates any of the basic features, as summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional. 

4. A further extension of this innovation is that a political party, which appeals to religion in its election manifesto, acts in violation of the basic structure, and the President may impose President’s Rule on a report of the Governor that a party has issued such a manifesto.

Moreover, this is the infamous case wherein the three dissenting judges out of the nine-judge bench observed and discussed vastly upon the word ‘secularism’ in the Preamble. It is important to mention the ratio decidendi ad rem by Ahmadi, J. He stated that secularism is based on the ‘principles of accommodation and tolerance’. In other words, described it as an espousal of a ‘soft secularism’ and agreed with the broadened definition adopted by the Court in Indra Sawhney v Union of India (1992), hence held that Preamble is an integral part of Constitution of India.

Conclusion

In the words of R.M Sahai J., the importance and utmost vitality of the Preamble and its relationship with the Constitution can be understood as “The preamble to the constitution is a turning point in history”. This clearly signifies the sentiments of our constituent assembly who sat down for 165 days in two years, eleven months and seventeen days to draft the Constitution of India and its Preamble holding paramount gravity in the lives of each and every citizen of India.

The journey from Re Berubari Case to Kesavananda Bharati case has been long and witfully comprehends that since the preamble forms the part of the basic structure of our Constitution then it means that if any dispute between two ambiguous articles of the Indian constitution arises, then it can be sorted out by referring the Preamble. Lastly, Our Constitution is the commitment the drafters of the Constitution and the people of India took together, to choose and respect their nation, the people and to prudently use the rights and duties enshrined in the Constitution of India.  

(Un)Constitutionality of the U.P. Ordinance on Conversion: The Puttaswamy Judgment-II

I have discussed the Puttaswamy Judgment here and its impact on Right to Privacy and liberty. In this post, I will be analysing the controversial ordinance passed by the Uttar Pradesh Government in the light of the Puttaswamy judgment. Recently, the UP Government has passed an ordinance called the “UP Prohibition of unlawful conversion of Religion Ordinance, 2020”. This law has been given the colour of an ‘anti-conversion’ law.

“The Problem”: the Law

The law says that, in section 6, that “any marriage which was done for the sole purpose of unlawful conversion or vice versa” shall be void. This means that if someone converts his/her religion to marry the other person, then that marriage is null and void, even after both the adults have given their consent for the marriage. Through this law, the state is ‘regulating’ marriage and the conscience of the citizens as well (which is a fundamental right under 25 of the constitution). The state is deciding what is right or wrong for its citizens. This questions the whole legitimacy of the social contract between the citizens and the state – the question that how much the state can regulate? Can the state regulate the private affairs of an individual? A person’s conscience is the most private thing available to her – therefore – is the state regulating our mind and our conscience and can they do it? This ordinance, unfortunately so, does it.

Further, section 8 of the Act states that any person who wants to convert shall ask to declare the same before the magistrate (‘DM’) ‘sixty days’ before. Then, the DM shall conduct an enquiry with the help of police to know the “real intention” for conversion. Giving such unfettered discretion to the DM or the police will increase arbitrary denial of conversion/free conscience. The executive authorities are not judicially trained to determine the ‘intention’ of the person and hence, this will increase the vast amount of violation of constitutional provisions such as liberty and right to conscience of an individual. The social scientists and theorists will help us in understanding the mentality of the officers (and the society) when it comes to converting to a minority religion. Every citizen has a “right to convert”- by exercising their freedom of conscience- under Article 25 of the Constitution. When a person chooses to change his/her religion then that person uses her conscience and she knows what is right or wrong for her. Hence, this regulation of a persons’ conscience must be unconstitutional.

Forceful conversions must be stopped as it goes against the ‘human will and conscience’ but putting so many barriers between those conversions which are not forceful is sheer violation of the rights of an individual. Converting for the sole purpose of marriage is the choice of the individual and the choice made by an individual must not be constrained through various provisions of the law. Here the law has to function according to the social realities and the reality is that the people who convert their religions for marriage are usually those couples who are performing inter-faith marriages. There is already so much fear of social exclusion, honour killing and persecution by the families which makes it difficult for an individual to make his/her free choice. Those who have the will to make his ‘free choice’ are forced to face the law which puts a blockade on their free choice.

Puttaswamy Judgment and individual’s Right to Choose

A person has freedom of conscience as a fundamental right because it protects that person’s right from the disdain of the majority society and legislature. A person who is converting to a minority religion faces the grave dangers of discrimination, life and liberty for a simple reason that his to-be-belief does not accord with the mainstream. Further, converting to a particular religion is an intimate choice of an individual and displaying that on the notice board of the DM and ‘taking permission’ from the authorities violates the ‘right to take an intimate decision about oneself’.  

The law on anti-conversion can be defended only by the Supreme Court’s problematic judgment in Rev Stainislaus v State of Madhya Pradesh which is a 1977 ruling delivered by five judges of the Supreme Court. The Court in that judgment said, “What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s religion.” This goes against the heart of the liberal constitutional idea. The judgment, in turns, misreads a person’s right to religion and freedom of conscience. In his three-volume book on Constitutional law, jurist Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Further, he argues, Chief Justice A N Ray “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B gives an opportunity for B to exercise his free choice of a religion.

Even in the constituent assembly, KM Munshi commented on the word ‘propagation’ and said:

“So long as religion is religion, conversion by the free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”

When we propagate our religion to someone with a free mind, we are trying to persuade that person and in the consequence of it, that person uses his conscience to exercise his free choice whether she wants to convert or not. Hence, the state cannot restrict a person’s free choice to convert or not convert and the Supreme Court’s judgment in Stainislaus is ought to be overruled.

Further, the nine-judge bench in the Puttaswamy case held that “Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life.” (¶113) When a consenting adult agrees to marry another consenting adult, what they do is make an essential ‘intimate’ choice about their life which is protected by the Right to Privacy (Article 21). Similarly, when a person converts, for whatsoever reason like marriage, then that person exercises her right of freedom of conscience (Article 25)and right to make an essential choice. After the Puttaswamy judgment, the five judges ruling in Stainislaus deserve to be overruled as it is seriously flawed in its approach and it fails to recognise a person’s right to make intimate choices.

Conclusion

The UP Ordinance of 2020 invades an individual’s freedoms and rights guaranteed by the Constitution. It goes against the heart of the Constitution. The state has no right in intruding into someone’s private life and the choices they make. In a constitutional democracy, the citizens must be left free to make their choices and they have autonomy over their conscience. Therefore, policing citizens over the matters of religion will badly hurt India’s secular fabric and citizens’ liberty and rights!