One of the strongest areas of protection in 2014 has been around equality on the basis of sex and gender. 2014 saw the Supreme Court decide two big cases where it overruled discrimination based on sex. One of them was National Legal Services Authority vs. Union of India and Ors., (“NALSA”) where the National Legal Services Authority initiated a public interest litigation to remedy the failure of state law and policy to recognize and protect transgendered persons. The Court established that the anti-discrimination provisions under Articles 14 to 16 included the right not to be discriminated against on the grounds of sexual orientation and gender, and that the word “sex” in Articles 15 and 16 of the constitution also included other self-identified gender identities. The Court held in NALSA that all the state’s laws and policies must let individuals to decide their own gender and record this as “male”, “female” or “third gender”.
Another important judgment on sex discrimination was Charu Khurana and Ors v. Union of India and Ors. Here, a female Petitioner was refused membership as a make-up artist the Cine Costume Make-up Artists and Hair Dressers Association, whose rules only allowed men to be make-up artists. The Court held that the Petitioner could not be denied membership, as discrimination on grounds of gender was a clear violation of her right to equality and a denial of “her capacity to earn her livelihood which affects her individual dignity.” Interestingly, the Court applied this requirement of non-discrimination on the Association, a private entity, and held that any clause in the bylaws of a trade union calling itself an Association cannot violate Articles 14 and 21. This opinion allows for the horizontal application of fundamental rights and breaks away from its earlier restrictive application in Zoroastrian Co-operative Housing Society Ltd.
Union of India vs. Atul Shukla was significant as the first Supreme Court ruling on age discrimination. The Indian Constitution does not expressly prohibit discrimination based on ‘age’ under Articles 15 and 16. The case challenged the terms of service for officers in the Indian Air Force, prescribing different ages of retirement for different officers. The Court held that classification only on the basis of age resulting from a deliberate decision to create a younger workforce was a violation of Article 14 guaranteeing equality. Though the Court did not recognise age to be a prohibited ground of discrimination under Articles 15 and 16, this case will intensify the Court’s scrutiny of age-related discrimination.
Finally there were some important decisions around the death penalty which, while not challenging the death penalty, laid down important law relating to procedural administration of death row and mercy petitions. In Shatrughan Chauhan & Anr. vs. Union of India and Ors the Court commuted the death sentences of 15 convicts whose mercy petitions had been rejected by the President on the ground of mental illness. The Court laid down guidelines for commutation and evaluated various supervening circumstances: prolonged delay in execution of a death sentence, insanity, mental illness/schizophrenia of the convict. The Court stressed that no exhaustive guidelines or outer time limits could be prescribed for disposing mercy petitions and the analysis must proceed on a case-by-case basis, entailing that the court must step in when the delays were “unreasonable, unexplained and exorbitant.”More procedural protections came through in Mohd. Arif and Ors. v. The Registrar, Supreme Court of India and Ors. A Constitution Bench, by a 4:1 decision, held that judicial review of death penalty cases must be heard in open court by a bench of at least three judges rather than just by circulation, justifying that the right to life could be deprived only upon following a procedure that was ‘just’, ‘fair’ and ‘reasonable’.
This Review throws up interesting conclusions. First, the year 2014 has shown that the Supreme Court is indeed a site for the campaign of sex equality. The progressive NALSA decision is in stark distinction to the 2013 Koushal judgment where the Court refused to overrule the criminalization of homosexuality. Secondly, the Court is making positive developments in unexplored areas.– age discrimination, horizontality of fundamental rights and rights of persons with mental disability on death rowpersons with mental disabilities in the context of the death penalty. What is disappointing is the lack of any strong decisions on social rights. Besides the landmark Pramati judgment affirming the constitutionality of the Right of Children to Free and Compulsory Education Act 2009, we see no judgment on social rights like housing, health or livelihood.