The 2021 judgment of the Indian Supreme Court in Vikash Kumar v Union Public Service Commission, which mandated that a disabled student be granted the support of a scribe for writing an examination, has been examined previously on this blog. Commentators have pointed out the judgment’s significant contributions to disability rights under the Constitution. In this post, I shall take a look at an argument that was raised by the State, and rejected by the Court: the argument of misuse.

The Union Public Service Commission argued that the “facility of a scribe may be used for nefarious purposes”, i.e., individuals who could write examinations without assistance would claim the facility in order to obtain an unfair advantage over their peers. In the context of Indian constitutional law, this is a familiar argument: the extension of a right to a group of institutionally vulnerable or marginalised people has often been resisted on the ground of abuse (this is particularly prevalent in the context of affirmative action policies, and forms the basis of the Supreme Court’s famous – or infamous – “creamy layer” test).

The Supreme Court rejects this argument for two principal reasons. First – and straightforwardly – the Court notes that no empirical evidence has been provided to demonstrate the extent – or even the existence – of misuse. In the absence of any such evidence, and having already held that disabled individuals are entitled to scribes under the principle of reasonable accommodation, the Court concludes that there is no good reason to displace the operation of that principle. This finding is important insofar as it reiterates the principle that if the State objects to according reasonable accommodation for whatever reason, then it bears the evidentiary burden of demonstrating the existence of the reasons for why it should not be held to its obligations.

More importantly, however, the Court notes that the argument of misuse replicates – and thereby entrenches – an invidious social stereotype about disabled people, namely, that “persons with disabilities, as a class … [are] incompetent and incapable of success absent access to untoward assistance.” The key word here is “untoward”: as the Court correctly recognises, the argument from “misuse” is premised upon a social view of the world that understands ableism to be not just the default way of things, but also the normative baseline, from which disability rights represent an exception, or a departure, that must therefore be contained. Importantly, the Court notes that “when competent persons with disabilities are unable to realize their full potential due to the barriers posed in their path, our society suffers, as much, if not more, as do the disabled people involved.” The use of the word “barriers” is particularly crucial here, as it signifies a recognition of active agency in denying disabled people full access to their rights, as opposed to viewing it as a natural – albeit unfortunate – state of affairs. In other words, the Court recognises that social institutions and structures are contingent, and society has a choice in deciding whether – and how – to design them so as to be equally accessible to all, regardless of ability or disability.

The Court burnishes this conclusion by noting that, therefore, if an instance of cheating, or the taking of undue advantage, is discovered, the consequences should simply be the same as in cases of able-bodied students found cheating; there is no warrant to carve out an entire state of exception for disabled students.

In sum, therefore, the Supreme Court’s analysis of the misuse argument is important for two reasons. First, for holding the State to a high standard of evidentiary proof if any exemption from meeting the reasonable accommodation principle is pleaded for; and secondly, correctly locating the argument within a structural and institutional analysis of disability in society, and the normative baseline that is – often unwittingly – invoked to defeat claims of equal rights and equal access.

This post is part of the blog series titled ‘The Development of Disability Rights in the Indian Supreme Court’. 

Interview with: Gautam Bhatia and Dr Joel Modiri
Recorded by: Nomfundo Ramalekana
Produced and edited by: Christy Callaway-Gale
Executive producer: Kira Allmann
Shownotes: Sarah Dobbie
Music: Rosemary Allmann

TRANSCRIPT (PDF)

TRANSCRIPTION:

The transformative possibilities of a Constitution: Dr Joel Modiri and Gautam Bhatia

Christy Callaway-Gale (0:11): You’re listening to RightsUp, the podcast from the Oxford Human Rights Hub. Today’s episode is a conversation that took place on the 18th of November 2019 between Oxford DPhil student Gautam Bhatia and Joel Modiri, Senior Lecturer in the Department of Jurisprudence at the University of Pretoria. In this episode Gautam and Joel speak about the transformative possibilities of Constitutions, specifically in the context of India and South Africa.

Constitutions are the legal bedrock of many countries, but they’re also political, and are produced within a specific socio-historical context, much like any text. As much as Constitutions are there to protect citizens, they can also exclude certain groups of people. And when a Constitution doesn’t work for all, how do we best address this? To what extent can we reinterpret a Constitution so it’s more inclusive? And when do we need to start again, from scratch? In this episode, Gautam and Joel discuss these questions in the context of India and South Africa.[1]

Gautam Bhatia (1:27): My name is Gautam, I’m presently a DPhil student here in Oxford. Before I came here, I spent four years in India, where I’m from, as a practising lawyer, and my engagement with— my serious engagement with Indian constitutional law, for me, began on a night in 2013, December. I was in the US, and so I was many hours behind Indian time, and there was a judgment that was going to be pronounced on the criminalisation of same sex relations in India — that was morning in India, it was night in the US, where I was. Everyone expected a good outcome. The Delhi High Court had a few years ago decriminalised same sex relations. The Indian State had not appealed, but some fringe religious groups that appealed that decision, and the Supreme Court was going to give a final verdict.

To everyone’s, or at least, to many people’s shock, horror, dismay and despair, the Supreme Court reversed that decision and re-criminalised same sex relations. I remember being unable to sleep that night, and wondering how this could happen, because like many other Indian— young Indian law students, I had been brought up in law school to believe that the Indian Supreme Court was largely, with some blips, a progressive and humane institution. That vision of the Supreme Court just did not square with a court that could do this. And so I began to think, and rethink, the stuff I had been taught.

And what I realised after retracing my journey through Indian constitutional law was that, actually, this judgment was more part of the course than an exception; so, in its history, the Supreme Court had more often than not been a rather conservative and deferential institution, and not the ardent rights protector that we’ve been led to believe.

But the deeper I went into Indian constitutional law, a journey that I conducted along with being involved in constitutional cases in India at the same time, I realised that there was this dominant history of the Indian Supreme Court, in the fashion I’ve just described, but there were also judgments that took a very different view, judgments that understood the Indian Constitution as being a deeply transformative document that sought to both transform Indians from “subjects” to “citizens”, and also to democratise Indian life beyond the public sphere and have social equality within what we understand as the “private sphere”. And these judgments formed what I now like to call a “contrapuntal canon”, borrowing from Edward Said,[2] that they are this private voice, this underlying voice, that always dissents against the dominant register. And so, I wrote a book on “The Transformative Constitution”[3] that focused on these kinds of judgments from the Indian Supreme Court, from the High Courts in various Indian states. And I tried to argue that this vision was truer, is truer, is more faithful to the Constitution’s transformative purpose and the Indian Constitution is a far more radical document than its interpretation would have us believe. This book was published in March of this year, at a time when there was a degree of hope around the Constitution and the Supreme Court, because the Supreme Court had recently gone back upon its 2013 judgment and finally decriminalised same sex relations.[4]

I guess I’m coming to this as someone who is maybe moving towards more and more scepticism about the potential of constitutionalism to actually be radical, although I still retain some kind of faith, because it’s hard once you’ve invested so much emotion, so much time, it’s hard to let go.

Joel Modiri (5:20): Thank you Gautam. My name is Joel Modiri, I’m a Senior Lecturer at the University of Pretoria, Department of Jurisprudence. My research started out, in the beginning, as research into the field of critical race theory. To biographise it, just slightly, I grew up in a township in South Africa that was established just before the middle of the 20th century, in 1939 — Atteridgeville — and it was predominantly part of the spatial project of the colonial regime, which was to place black people in really what were “reserve” or ghetto-like environments. And I think that shaped my political thinking about race and law.

So the work I’m trying to do is to draw from the historical archive of the Black freedom struggle — specifically, now, my current research might be called the Black Consciousness Pan-Africanist tradition in South Africa, but with all of its roots into the rest of the Black world, particularly the trifecta of Anton Lembede, but Anton Lembede also working with Asby Mda, Robert Sobukwe and Steve Biko, that generation of intellectuals from the 1940s to 1970s, which, in my view elaborated a completely different concept of law, of politics, of political community, of justice, of freedom, of futurity. And these were the ideas I have argued that were neglected, and even, in a way, suppressed in the making of the post-1994 Constitution.

So unlike you, I didn’t start with any hope in the Constitution. I already started with a worry that the Constitution of the “new” South Africa, as a political project of nation building, and as a political project of overcoming historical injustice, was blind to, ignorant of, closed out from rather, a much more radical tradition of Black thought. And my argument is that rather than critiquing the Constitution on the basis of its immanent failures, or to argue that the Constitution’s failures are merely external to it, that the problems are interpretation, legal culture, political will of the State, and I think that’s also true, it’s part of the story, but I’m actually suggesting that to the extent that the Constitution is a textual representation of a particular political imaginary, and of a particular political moment, was always, already going to fail at producing a liberated society.

Gautam Bhatia (8:00): So I guess I have a couple of comments and a couple of questions. Given that the Constitution remains framed in abstract terms, it embodies what it claims to be “universal values”. Don’t you think that it’s possible to take this radical Black intellectual tradition you have been talking about, and say that, “Look, it’s actually possible to interpret [the] South African Constitution in a way that takes this forward, and the fault is of judges, the legal culture, and so on”?

Joel Modiri (8:25): Yeah, so I’m trying to move us away from the immanent critique, right? Well— and there are a few ways to get at this. So the antinomy here, the contradiction, the major difference, was (if it were to be boiled down to this) that the ANC’s [African National Conference], let’s call it either the Chartist or the Congress traditions’ vision of change did not imagine the abolition of a colonial state — it imagined the democratisation of a colonial state. It was a tradition that consistently— even though it had, sort of, radical movements and elements within it— consistently sought a place within the colonial order. But the Africanist tradition’s starting point, though, is completely the inverse — it is that South Africa was not simply made without the native, because that you can correct; it was made against the native. And because of that, the argument of the Africanists was that any attempted reform would be a dead end.

Now, to answer your question about the Constitution and its interpretive possibilities. Well, the first point is, because of the Africanist starting point, of the illegitimacy of the founding of the South African order, and therefore the illegitimacy of any Constitutions that evolve from it, rather than that mark a revolutionary break from it, that the Constitution is therefore not the starting point, right? So your project works for someone who thinks that the origins of the Constitution are untainted, or who thinks origins don’t matter that much. And I know people who say, “Let’s forget about the origins, let’s just see what we can do with this now”. And this is not good history, good scholarship, and it’s not even, I think, a sensible way to approach this.

And the second point for me is that I agree completely, and I think it’s important and worthwhile work to be doing the work of transformative interpretation, of working with what you have, in order to ameliorate the harshest conditions of inequalities in human suffering. But I do think words have limits. I mean, in other words, I don’t think the meanings of texts are as elastic as one makes them — there [are] certain constraints. We know this in South Africa under the socio-economic rights clauses — they have an immediate limitation because they have the condition of “available resources”, and so that’s just a limitation, that’s just— People have tried to read it in very different ways, and so forth,  but it’s clearly a constrained element of the Constitution. So I think we can only go so far with interpretation.

And then the third point, which is the point I am trying to really think about substantively now, is that I— you—  a Constitution cannot be read in abstraction, right? Even though it has abstract terms, it can be interpreted openly, but the Constitution itself can’t be read in the abstract. In other words, you can’t read our Constitution of South Africa outside of the negotiated settlement and outside of the attempt to preserve White capital and the secret negotiations that the ANC entered into with White capital. You can’t read the Constitution outside of the Eurocentric order of power and knowledge, and the ways in which the global waves of liberal democracy and westernisation of African post-colonies was part of this Imperial project. You can’t read the Constitution— So, even though in the practical day-to-day struggles of say, a community fighting for water rights, that looks very distant, it looks very, in a way, esoteric to mention “imperialism” — like, they don’t care, they just want water. I think it does, because ultimately the whole Constitution represents an entire political imaginary formed by, first, the language that it has, but also by what I would call the internal and external determinants. And I would say Eurocentrism, liberal capitalism, neo-liberalism — those are determinants of a Constitution’s meaning, they are determinants of a Constitution’s potentiality, and they are reason enough to overwhelm and render a Constitution hollow.

Gautam Bhatia (12:20): I understand exactly what your argument is, and I think I have two things to say based on the Indian historical experience. The first is that, I think that— I mean, I guess I don’t yet quite agree that a Constitution or any text is embedded in its origins to an extent that it can never liberate itself from that, from the origin. I have two examples in mind.

The first is that— first is the history of liberalism. Liberalism, as it arose alongside the Enlightenment in Western Europe, was exclusionary in its very design, because Enlightenment depended upon refusing to extend what it claimed on behalf of White people to non-White people. Emmanuel Kant was a thoroughgoing racist, like, we all know that, right? And as were— John Stuart Mill, right, strongly believed that the colonised countries were Savage, they were not ready for self-government— that whole argument about the “Waiting-Room of History”.[5] Except that, once these liberal philosophers, including John Stuart Mill, had framed their argument in the language of universalism, it went beyond their control, and there is a fascinating history where, in India, John Stuart Mill’s “The Subjection of Women”[6] became a canonical feminist text that Indian women used to make claims against Indian men. So John Stuart Mill never intended that his arguments on the rights of women could ever be used by non-White women against non-White men, right? There was of course the whole saviour complex of White men going to save Brown woman, that was one thing, but he didn’t think that his arguments would have any purchase in non-White countries, because the whole project was that, “Look, White people have this autonomy, this dignity, they’re able to do all this, whereas the rest of them don’t”. But once you have those arguments down there, then you “authorise”— to use the whole Malthusian-like argument[7] — and you lose control over how others will interpret what you said.

And the second point is, again, broadly similar, which is that I think there’s a distinction to be drawn between what you can secure through constitutional litigation, and what a Constitution does not prevent a State from doing. So you’re talking about the disjunct between the vision of society that the South African Constitution talks about, and the reality of continuing racism, inequality, dominance over property in South Africa. Now I think that that goes to, for me at least, a slightly different distinction, which is that you cannot revolutionise society and bring about substantive material equality through constitutional litigation — that’s going to court and imposing rights, and the limitations of that are well documented, and we both know that.

I think the key question is that were, tomorrow, a Government to come to power that subscribed to your radical Black intellectual tradition, or that subscribed to Ambedkar’s “Annihilation of Caste”[8] — would the Constitution (a) stand in the way of it coming into power, and (b) once it came to power, would it stand in the way of it implementing its radical manifesto? Now if you look at the US, right, the way they’ve interpreted the Constitution, and there’s actually, right now, a big debate if a Bernie Sanders or Elizabeth Warren was to come to power in the US— Even their mild social democratic reforms would be stalled by a US Supreme Court that would read the Constitution to prevent any kind of redistribution.

And I think that for South Africa, I guess that question will be debated once you have your debates about, you know, whether [there is] land redistribution or not. In India, in the beginning, that was the case, the first 20 years. But at least now, it seems unlikely that if you had a Government that was able to come to power on a radical manifesto, the Constitution wouldn’t stand in its way when it implements that manifesto. So I think that it might be expecting too much of Constitutions to say, look, we can use Constitutions to reform society— except under— except  when you have categorical rights of [a] certain kind— But I think that if, as long as Constitutions don’t stand in the way of radical reform, that’s about as much as you can expect from them, regardless of their origins. And that’s they should be judged on, finally, these two criteria.

Joel Modiri (16:46): Yeah. Well, so— I mean, I partly agree, the problems are twofold. One, that argument only works if one takes the Constitution as a sort of eternal, fixed thing. I mean, you can just scrap it and come up with another one, as the foundations of a society change. And the Abolitionist project is that we’re going to need to do that, because when you’re making a Constitution, you’re not just drafting a legal document, as you’re pointing out — you are reshaping the values and norms of a society. So that’s why I think a Constitution is a particular kind of political project.

Gautam Bhatia (17:21): I’m sorry to interrupt you. Just a quick point on that — do you really think any document can be— can do what you’re asking it do?

Joel Modiri (17:27): It’s not that I’m asking it to do it — it does it. So in South Africa, the Constitution has massive force over public consciousness, a particular meaning of the Constitution, but the reason— So it’s not even— So my critique is of Constitutional worship, is of thinking that Constitutions can do that, but it’s also, the written text is simply the written version of a much more foundational political reordering in a society. So for me, it’s not that the Constitution “does it”, it’s that the Constitution ought to reflect it, a Constitution ought to reflect a certain value system, it ought to reflect that ideology. So I would expect a socialist Constitution to look very different to the one in the US. Even if you can push a socialist project through the current Constitution, I would expect— because you’re reconstituting a society and then you draft the Constitution. So, I’m not asking this Constitution or any Constitution to do the work of political justice and liberation — that’s just asking too much. I am asking for a Constitution to reflect that aspiration more clearly, more directly, in the appropriate language and cultural imaginaries.

Now, the South African Constitution, and Western Constitutionalism in colonial context, faces a much bigger critique, which I’m also elaborating, which is a cultural one — spending more time on a Western document means you’re not even thinking— you’ve in fact surrendered the idea of an African law, for example. You’re simply saying, “Listen, it’s over, let’s just work with what we have”. There are people who try to say you could read this whole thing completely differently, but why waste that time if what you need to be doing is asking a much deeper political question: What kind of society do you want to live in?

Gautam Bhatia (18:55): Yeah, I think I’ll take up the last thing you said. So there’s actually a lot of fascinating historical work on how the Abolitionists in the US in the 1850s actually argued, before a 13th Amendment,[9] before a 14th Amendment,[10] that this Constitution prohibits slavery, which you think is bizarre because the American Constitution was founded in slavery and the constitutional text talked about “three fifths”, you know, like a Black person counting as “three fifths” of a White person for apportionment purposes.

Scholars will argue and historians will show that the American labour movement in the 1910s-1920s pegged their radical labour claims on the Constitution — a tradition of “labour Republicanism” is what they call it. And I think that what’s important, and to answer the question which we ended on — Why waste that time? — is exactly that, given that the Constitution plays a legitimising role in society, pegging your claim to the Constitutional manner that is convincing, gets you, at the present time, further than it would get you to reimagine the entire order through a political struggle. And also given the way that the balance of political forces operate at any given time in a society, I think history shows us it’s a struggle that, you know, the Left, so to say, tends to lose, right? That’s the core of history. So in that sense, the Constitution ends up playing a defensive role, in that if you’re able to ground your claims within the Constitution, you’re able to attain a position of strength — which of course is not going to be enough, but at least it’s something — in a way that you would be unable to if you were to descend into the political arena, given how it’s actually rigged against— already against equality and freedom in different ways. And so that’s why, to answer the question, you need to spend time to do that work, given the role that Constitutions, as you say, play in society. Unless you’re— and this could be a country by country thing— So unless actually in a position where you can implement the constitutional vision that you think is a good one, you have to use the Constitution to preserve what you have, and which is in danger of being swept away, which is, I think— at least presents some kind of danger in India right now.

Second point is, and just to take on from that, is that I think implicit in your argument is the premise that there’s something negative about a compromise, a compromise settlement. And I think that need not always be the case, which is why again, I’m interested in how you can resuscitate certain readings after the fact.

So, in 1947, in India, given the balance of power, a compromise was the only way you get anything done, and in which Ambedkar could actually accept the role as chief Draftsmen of the Constitution. I think there is a case to be made that, at the time our Constitution was framed, the negotiated political settlement, the compromise, was the only way you could have even got to that point. That moment has now passed. And now is the time to reimagine that Constitution in a way that liberates itself, as I said earlier, from the compromised origins of its coming into being.

Joel Modiri (22:18): But that would be a gradualist project. Because what would make that project different to the remaking of a society is the fact that you argue that using the vocabulary of a Constitution grants the argument greater legitimacy and you can do quite a bit of work with it. So I think one of the things is, you’re right that in countries now, confronted by powerful, totalitarian right-wing regimes, the defensive role of a Constitution cannot be understated, and particularly the defensive power of a radical interpretation of that Constitution. But that Constitution alone, if it’s not tied, as I’m saying, to a larger political project, firstly, and that Constitution, when it has overwhelmed the political space, won’t be able to resist those developments.

I mean, what’s happening for example, with reproductive rights in the United States, for example — one interpretation of the Constitution in one way in a different period of history and then— So for me, it also has to do with, where does the power over a Constitution lie? It has to lie in the political community that authorises it. In South Africa, we’ve had what I’ve called “Constitutional worship” and “Constitutional optimism”, where the Constitution is deified in this way. And so the argument that we’ve been trying to make is that, the Constitution cannot be the centre of the political anymore, in the way that it used to be.

And that goes beyond the argument merely about the Constitution being limited, that we know. But it also means you’ve got to probe what a Con—  I mean, sometimes the Constitution gets captured by meanings that are not part of its original vocabulary, for example. But it is actualised by those powers of discourse. So I guess I’m merely contesting — well, I’m not “merely” contesting that — but I’m contesting the distinction between a sort pure Constitution and an external world. I’m saying it’s already imbricated in its meanings. But you’re very right that this has to do with sort of questions of a political history and what one can do with a Constitution. I think we need to be doing multiple projects, political projects at once. I think we need to be seeing what the possibilities are of a Constitution to safeguard against particularly the State power, but I do think we are now at a moment, not where we want to save liberal democracy (because I think that’s a mistake), but where we actually are in a position, the world is in a position, where the world has to be remade, if it is to survive, politically, ecologically, you know?

So that’s where I would think that the limits of a Constitution are, but I also want the Constitution to move away from the experts and the lawyers and the limited framing of political life in terms of judicial decisions and court debate. The new wave in South Africa of Constitutional discourse is this discussion of particular advocates and judges and how they reason, and that’s important and good, but I think if we’re going to think about proper constitutional scholarship, we’ve got to integrate deeper political imaginaries into the conversation. And it also means asking, “What are the silences of a Constitution? What does a Constitution not allow us to even talk about?” And we need to insert those conversations, both in the constitutional scholarship, and we also need to displace the centrality of a Constitution so that those conversations can happen.

But I think we also shouldn’t deny that Constitutions also represent fixed interests. So just the point about compromises — a compromise, among other things in the context of South Africa, means that the old order was not defeated, and the dangers of overvaluing the Constitution, claiming it’s transformative and not being honest about its political limits, like I think [inaudible] failed to do in the beginning, gives a— frames the discourse of constitutionalism in a very problematic way. It’s no coincidence that the critique, the most (in my view) radical critique of the Constitution now is gaining visibility 20 or something years after— well, almost three decades into the New South— the Second New South Africa, as I call it, and that’s because there was a hegemonic meaning of a Constitution that is faltering, both on its own terms, and because of the world it’s in. And I think that’s part of what the Constitution is. So for me, the ontology of a Constitution is also the external world that actualises it. If that makes sense?

Gautam Bhatia (26:38): I think that definitely makes sense. I think what we at least agree on is that the Constitution cannot and should not be the preserve of, you know, lawyers and judges. And I’m reminded of a fascinating, ongoing story, where a village in India, Adivasi, indigenous people whose lands were being taken over, basically imprinted Constitutional provisions on stone slabs, to make their claims and 10,000 of them have now been booked for sedition. So on that pessimistic note, we could talk about this for a long time, but we have to close out— I’ll just end by asking you like one— two questions, I think for people who may be listening to this podcast and don’t come from South Africa, which is that, if you were to recommend two books that would encapsulate what your vision of constitutionalism or abolitionism is, what would those two books be? And if you were in charge of drafting a Constitution, one provision that you would have [to] draft, what would it look like?

Joel Modiri (27:34): Well, I’d say we should start by reading Steve Biko’s “I Write What I Like”,[11] and then from there, it really gets hard. I think, maybe not books, but I think if you want to understand abolitionist politics, I would say that one needs to read Marcus Garvey, DuBois the Pan-Africanist, the Haitian Constitution, the Ghana Constitution of 1960. I think one needs to read Robert Sobukwe, I think one needs to read Malcolm X, and I think one needs to read Cedric Robinson’s “Black Marxism”,[12] oh, I think that’s really important. I think one needs to read a book by Joy James called “Shadow Boxing”,[13] which is about, sort of, Black feminist politics. That’s the one thing.

As to a particular provision. I can’t think of one but I can tell you which two I think should be removed from the current Constitution, or three. The first one is Constitutional supremacy — it has to go. The second one is non-racialism, it has to be taken up, not because— it’s precisely because it’s a regressive conception of race, it actually affirms the existence of races rather than works towards dismantling them. And the property clause. But that’s only if I thought this Constitution could be saved, which I don’t.

But also, before we close, um, my deep interest is in Ambedkar, and is in his thinking on annihilation of caste, and maybe this is how we’ll close, so you can have the last word. Just if you could briefly say a few things about Ambedkar’s differences from Gandhi — because Gandhi is a much more popular figure, both in South Africa and elsewhere — and also what it is about Ambedkar’s ideas, aside from his role— pivotal role in the Indian freedom struggles, what about Ambedkar lives on today?

Gautam Bhatia (29:30): That’s a very difficult question. I’ll try to be brief. I’ll begin by saying— I’ll begin by identifying my own location in this debate. I am an upper caste Indian, like, you know… upper caste Indian. So I belong to the social group that Ambedkar rightly held responsible for the many centuries long structural oppression of his people. So whatever I say needs to be taken into account, given my location in this debate.

Ambedkar’s difference with Gandhi? A good source, a book called “The Flaming Feet”.[14] In summary, Gandhi believed in accommodation, in the sense that the Hindu society was one and united, and at that time, the Depressed Classes, which later became known as the Scheduled Castes, the Dalits, could be brought within that fold, and his method of doing that was to effectively play up their oppression as being something that is noble. For example, he called them “Harijans”, which means “Children of God”, and he said that the work that they were assigned in the caste hierarchy, you know, works [including] cleaning and so on was actually very noble and he would have public demonstrations of himself, you know, doing that kind of work and say, “Okay, look, this is actually— they’re doing very noble work.” And so his idea was that, look, if you can— you can basically paper over the contradictions through a spirit of benevolence, a degree of sacrifice, a public sacrifice, and that you can have unity.

Ambedkar, on the other hand, believed that the only way to break caste oppression was by ensuring that there was political and social power that was given to Dalits, and so he began by asking— he asked many things. He had movements for access to temples, access to water bodies, and so on, but he very interestingly asked [for] separate electorates. So he said, look, they should— Scheduled Castes should be able to vote for their own representatives in Parliament, and Gandhi— for Gandhi that doesn’t [inaudible] because that actually meant that you were treating Scheduled Castes as not being Hindus but as being, like, a different group. And Ambedkar was like, “Yes, actually, we are a nation, we are a separate nation.” He said, “I have no homeland” once.

And so Gandhi basically then decided to go to— to start fasting to death, and he said, if these separate electorates are granted by the British, then I will basically fast until I die. And Gandhi’s popularity, of course, was such that when Ambedkar was told that Gandhi’s death will be on your hands, this is in 1932, Gandhi’s death will be on your hands, he had no choice but to withdraw his demand for separate electorates and that left a long, long term effect on him. And the best source for all of this is this book Ambedkar wrote, called “What Congress and Gandhi have done to the untouchables”,[15] and in that he excoriates the role of the Indian National Congress and of Gandhi. And another work of his called “Jinnah, Ranade and Gandhi”,[16] he talks about like these liberal reformers, and it’s a critique of liberalism as well. And so I think these—if you read these works, primary works by Ambedkar, and the book “The Flaming Feet”, you will get a good sense of the different perspectives that they were coming from.

And the final point — Ambedkar’s relevance and role today. This is the interesting thing — Ambedkar has become such an important figure that even political parties that you would otherwise think are opposed to his vision, nonetheless, in public, have to embrace him as the Founder of the Indian Constitution, as a representative of Dalits, and so on. So in the public domain, actually, he has attained the kind of transcendent importance that even at this point of time goes beyond Gandhi, because Gandhi’s legacy itself is under threat, not just from radical critique, but also from the right-wing. So Ambedkar, ironically, perhaps, has actually become an even more universal figure, in the public domain, than Gandhi right now.

More practically speaking — You’ll see statues of him in Indian villages with a copy of the Constitution under his arm and so on. Dalit leaders have come to the fore recently, like a young leader called Jignesh Mevani, have publicly said, this is Ambedkar’s Constitution, that’s why, you know, it’s important to us and we’re going to try to implement Ambedkar’s vision.

So I think that he’s definitely there, as a presence. And among the Dalits, there’s also a very sharp understanding of his politics and what he wanted. I think the problem, and a point that you’ve made repeatedly, is that in the context of race, that it’s that White people have to confront racism in their communities. I think similarly, it is actually the task of upper caste individuals in India to understand and to carefully read Ambedkar’s work and to understand what it is that he was talking about, how the things he pointed out still exist today, and what the Constitution— what the constitutional role can be to realise his understanding of what a casteless, classless, equal society actually meant in practice.

Christy Callaway-Gale (34:58): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann. This episode was produced and edited by me Christy Callaway-Gale, and was recorded by Nomfundo Ramalekana. Music for this series is by Rosemary Allmann and Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

[1] Indian Constitution is available at: https://www.india.gov.in/my-government/constitution-india/constitution-india-full-text and the South African Constitution is available at: https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf.

[2] Edward Said. Culture and Imperialism (1993).

[3] Gautam Bhatia. The Transformative Constitution: A Radical Biography in Nine Acts (2019).

[4] Navtej Singh Johar and Ors. v Union of India thr. Secretary Ministry of Law and Justice (Writ Petition (Criminal) No. 76 of 2016) (2018), available at: https://indiankanoon.org/doc/168671544/.

[5] Dipesh Chakrabarty. Provincialising Europe: Postcolonial Thought and Historical Difference (2000).

[6] John Stuart Mill. The Subjection of Women (1869).

[7] A reference to Thomas Malthus.

[8] B.R. Ambedkar. Annihilation of Caste (1936).

[9] The 13^th Amendment provides: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

[10] The 14^th Amendment provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[11] Steve Biko. I Write What I Like: Selected Writings (1978).

[12] Cedric Robinson. Black Marxism: The Making of the Black Radical Tradition (1983).

[13] Joy James. Shadow Boxing: Representations of Black Feminist Politics (1999).

[14] D. R Nagaraj. The Flaming Feet and Other Essays: The Dalit Movement in India (2011).

[15] B.R Ambedkar. What Congress and Gandhi have done to the untouchables (1945).

[16] B.R Ambedkar. Ranade, Gandhi and Jinnah. Address Delivered on the 101st Birthday Celebration of Mahadev Govind Ranade, Held on the 18th January 1943 in the Gokhale Memorial Hall, Poona (1943)

The judgment of the five-judge bench was unanimous. Four judges – the Chief Justice, Nariman J., Chandrachud J., and Malhotra J., wrote separate and concurring opinions. Each of the judges held that Section 377 violated Articles 14 (equal protection of laws), 15 (non-discrimination), 19(1)(a) (freedom of speech) and 21 (right to life and personal liberty) of the Indian Constitution.

The Chief Justice’s judgment focused upon the idea of choice. Criminalising individuals in the exercise of fundamental personal choices, he held, was “manifestly arbitrary”, and therefore failed the test of Article 14. He also grounded constitutional dignity – a facet of Article 21 – within the idea of choice, and on that basis, was able to hold that Section 377 violated the right to life and personal liberty as well. An interesting aspect of this opinion is that the Chief Justice invoked two opposing views on same-sex relations – the “intrinsic” or “immutable” personal characteristic view, and the “fundamental personal choice” view; however, instead of choosing between them, he held that they were complementary, and that both deserved constitutional protection.

Justice Nariman also held that Section 377 was manifestly arbitrary. He did so on the basis that Parliament itself, through the Mental Healthcare Act of 2017, had recognised that homosexuality was not a mental disorder. This was supported by science. Consequently, the distinction between “natural” and “unnatural” sex was unsupported in fact, and could not be justified on any rational view of the matter. Justice Nariman also took the interesting view that because Section 377 was part of the colonial penal code, it did not enjoy a presumption of constitutionality.

The concurring opinions of Justices Chandrachud and Malhotra are particularly interesting from the perspective of equality and non-discrimination. Justice Chandrachud embarked on a detailed exploration of the meaning of the constitutional guarantee of non-discrimination “on grounds of sex” (Article 15(1)). He held that what mattered was not legal form, but the effect that a law had on the lives of people – an inquiry that required sensitivity to social context. Prohibiting homosexuality stemmed from the same stereotypes about gender roles that were also responsible for sex discrimination. Consequently, a law that, in effect, impacted sexual minorities, and that was based on gender stereotypes, violated Article 15(1)’s prohibition upon sex discrimination. During the course of his judgment, Chandrachud J. also held that the Indian Constitution prohibited indirect discrimination and intersectional discrimination – the first time that the Supreme Court has explicitly accepted that proposition. And lastly, Justice Malhotra’s opinion was notable for her observation that if a law disadvantaged individuals on the basis of “an intrinsic and core trait” of an individual, it would ipso facto fail the test of equality. In other words, even though the law might have an intelligible classification, and a rational nexus with some State goal, the very purpose of the law was ruled out by the Constitution.

The four judgments were bound together by the common threads of constitutional morality and transformative constitutionalism. “Constitutional morality” was first used by the Delhi High Court in its 2009 judgment, in describing the constitutional ethos of inclusiveness and pluralism. Nine years later, the Supreme Court resurrected this vision of constitutionalism, noting that the ultimate yardstick for testing a law was not popular morality, but constitutional morality. As a transformative document, the Indian Constitution’s “morality” was one of tolerance for different forms of life and diverse ways of living. Any law that deprived a community of equal moral membership of the polity, therefore, could never be constitutional.

In Navtej Johar v Union of India, the Indian Supreme Court has atoned for its 2013 judgment, and opened a gateway to further developments in Indian equality and non-discrimination law.

—

(Disclaimer: The author was one of the lawyers representing Voices against 377, a coalition of organizations challenging S. 377 before the Court. A longer version of this piece is available here).

Under the rules of the Indian Supreme Court, even a final judgment can be reviewed under exceptional circumstances (“the curative process”). While this review was in progress, however, something entirely unexpected happened. In an unrelated judgment delivered in August 2017, while deciding the question of whether the Indian Constitution recognised a fundamental right to privacy, a nine-judge bench of the Supreme Court singled out Koushal v Naz Foundation as one of the two grave mistakes of its history (the other was an Emergency-era judgment denying the right of habeas corpus), and stated in clear terms that the Constitution protected the rights of the LGBT community.

A year before the right to privacy judgment, a group of individuals had filed petitions before the Supreme Court arguing that S. 377 violated their rights under the Constitution (Navtej Johar v Union of India). The crucial difference between Naz Foundation and Navtej Johar was that the former had been argued as a “public interest litigation” (Naz Foundation is itself an NGO, and brought the case in a representative capacity, under the relaxed rules of standing that are part of India’s PIL jurisprudence), while the latter was a petition filed by affected individuals in their personal capacity. Navtej Johar and his companions argued, therefore, that their case was on a different footing from Naz Foundation, and ought to be considered on its own terms.

The Supreme Court’s right to privacy judgment brought the Navtej Johar petition – which had been put into cold storage by the Court when it was filed – to the forefront. In January 2018, the case was listed for hearing before a five-judge bench of the Court, and it finally came to be argued in July 2018. Importantly, because Navtej Johar was a fresh petition, the entire issue about the constitutional validity of Section 377 could be argued afresh, no longer bound by the narrow scope of the Court’s review procedure.

The Navtej Johar proceedings were very different from the previous round before the Supreme Court. Early on, the Union of India informed the Court that it would not defend Section 377, and would leave the decision to “the wisdom of the Court.” The opposition came from an assortment of Christian religious groups, and some of the individuals who had appealed the Delhi High Court’s judgment and won in the Supreme Court in the previous round. The major difference, however, was the Court’s clear statement in the right to privacy judgment, which provided strong – and virtually irrefutable support – to the Petitioners’ case against Section 377.

For this reason, while the Petitioners did argue that Section 377 violated Article 14 (equal protection of laws), 15(1)(non-discrimination on grounds of sex), 19(1)(a) (freedom of speech and expression), and 21 (right to life and persona liberty), the focus of the case soon moved elsewhere. Counsel for the Petitioners argued, in addition, that this was a case where mere decriminalization would not be enough. The stigma and the deprivation caused by a century-and-a-half of being treated as “unconvicted felons” (first by the colonial British, and then by the independent Indian state) could not be wiped out simply by ruling that same-sex relations were no longer a crime. The Court, therefore, was urged to go further: to author not just a decriminalisation judgment, but a civil rights judgment. The Court was asked to declare that the LGBT community must be treated with equality, both by the State, and by non-State actors, and that no individual could be denied access to healthcare, education, or any other service on grounds of their sexual orientation.

When the judgment of the Supreme Court comes out, therefore, there are two things to watch out for. The first is the constitutional bases upon which the Court will rest its judgment: whether the Court chooses to decriminalize same-sex relations on the ground of privacy, or on a strong reading of the equal protection clause that prohibits disadvantaging individuals on the basis of their personal characteristics, or by reading “sexual orientation” into the word “sex” in the non-discrimination clause, or in a combination of all of these, it will be important for the direction of civil rights law in the future. And the second is how far the Court will choose to go: will it content itself with decriminalisation, and leave the rest to a future day and a future dispute? Or will it issue a broader declaration that affirms and protects the civil rights of the LGBT community? Time will tell.

There is some controversy over the exact scope of the “curative jurisdiction”. On a narrow reading, a curative petition can succeed only if it is shown that a necessary party was not heard by the Court, or if judicial bias is proved. On a broader reading, however, it is argued that the curative jurisdiction can be invoked to correct gross and patent errors in a judgment, which have and can result in great injustice. In either event, the exercise of this jurisdiction is extremely rare: in the twelve years since it invented the curative proceeding, the Court has allowed a curative petition on only five occasions.

In 2014, the Naz Foundation petitioners made a significant breakthrough when they persuaded the Court to depart from its usual practice of deciding curative petitions “by circulation” in the judges’ chambers (i.e., without oral arguments). The Court agreed to hear the petition in “open court”. In January 2016, a further breakthrough was achieved when the three most senior judges of the Supreme Court, who – as per the rules – were hearing the curative petition, decided to refer it to a larger bench of five judges. As reflected in the order of the three-judge bench, this was because, in the opinion of the Court, the petition raised important and far-reaching questions of law – even at the curative stage.

Although the Court’s observations were promising, the odds remained stacked against the curative petition succeeding: the demands of stability and finality, and the fear of an opening of the floodgates, would have been likely to stay the Court’s hand, even if the judges now hearing the case thought that the 2013 decision, delivered by their predecessors, was incorrect.

In the month of August, however, an entirely unexpected and unforeseen development occurred, which might have changed the equation entirely. A nine-judge bench of the Supreme Court was constituted to decide whether or not the Indian Constitution guaranteed a fundamental right to privacy (Puttaswamy vs Union of India). The privacy case arose out a constitutional challenge to the Indian State’s biometric identification scheme (“Aadhaar”), during the course of which the Attorney-General argued that there was no express or enumerated right to privacy under the Constitution.

To settle the constitutional question, a nine-judge bench was established. At the end of August, by a unanimous order, the Court held that privacy was indeed a fundamental right under the Constitution. More specifically, however, a plurality of four judges singled out Koushal vs Naz Foundation as a judgment that was clearly and evidently wrongly decided. In particular, the plurality observed that the Koushal judgment’s holding that only a “minuscule minority” engaged in same-sex relations completely misunderstood the nature and concept of rights. The plurality went on to hold that, in its view, sexual orientation was definitively protected under the fundamental right to privacy. The plurality’s view on the correctness of Koushal vs Naz Foundation was endorsed explicitly by one of the five separate opinions, and implicitly by the others, all of which held that the right to intimate decision-making was a facet of privacy. The plurality also concluded by noting that it was not specifically overruling Koushal only because that case was still pending in curative proceedings.

The judgment of the nine-judge bench should make it clear that the premise of Koushal vs Naz Foundation is no longer valid. Consequently, when the Court next hears the curative petition, it can do one of three things: overturn the Koushal judgment then and there, and restore the judgment of the Delhi High Court; remand the case for a fresh hearing in view of the holding in the right to privacy case; or, acknowledge that Koushal is no longer good law, while refraining from invoking the curative jurisdiction. In this last eventuality, the moment the Court dismisses the curative petition, a fresh challenge to Section 377 is almost a certainty – and that will allow the Court to overrule Koushal in the normal course of things.

Whatever the outcome of the curative petition, the Supreme Court’s privacy judgment has ensured that sooner or later, consensual same-sex relations in India will be judicially decriminalized.

(Disclaimer: The writer was part of the legal team assisting the Petitioners in the January 2016 curative hearing, and part of the legal team assisting the Petitioners in the right to privacy case)  

Barring a few exceptions, the word “grounds” has been understood to mean “reasons for a decision”, thus requiring it to be shown that a particular law was motivated by an intention to discriminate. This has eliminated the possibility of challenging indirect discrimination. The word “only” has been interpreted to mean that discrimination along the single, prohibited axis of sex is unconstitutional; however, if it can be shown that characteristics other than sex play a role in the unequal distribution of benefits and burdens, then the impugned law or rule will pass constitutional scrutiny. This has allowed the government, for instance, to invoke stereotypes and prejudices about the role of women in society in order to justify laws denying them equal opportunity at the workplace.

In its judgment, the High Court of Delhi broke new ground by abandoning the restrictive approach on both counts. The case – Inspector (Mahila) Ravina vs Union of India – concerned a challenge to the Central Reserve Police Force’s (CRPF) denial of seniority benefits to a woman inspector, because she had missed a training course due to pregnancy (she had subsequently completed the course). Under the CRPF rules in question, an “unwillingness” to attend the promotional course would result in loss of seniority upon promotion.

The High Court held in favour of the petitioner, and invoked Article 21 (right to life and personal liberty) and Article 16(1) and (2) (non-discrimination in public employment on the basis of sex) of the Constitution. It is the second argument that is specifically noteworthy. In paragraph 12 of his judgment, Justice Ravindra Bhat observed:

“It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees– i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory…In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.“

This significantly advances Indian sex discrimination jurisprudence, not only because of what the Court held (that pregnancy-based discrimination is unconstitutional), but also because of how it did it. Justice Bhat observed that “a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.” This is the language of indirect discrimination: facially “neutral” provisions have a discriminatory impact because they end up reproducing existing social inequalities and hierarchies.

It is also fascinating to note that Justice Bhat placed the word “normal” within quotation marks. In the first part of the paragraph, he noted that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct. In other words, the “normal” is constructed from the perspective of a privileged subject position. The “normal” worker, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective. It is this edifice of exclusion that the Delhi High Court’s judgment interrogated, and then found to be inconsistent with the Constitution. By de-mythologising “normalcy”, the Delhi High Court made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice.

(A longer version of this post first appeared here)

The Supreme Court struck down Section 66A for four reasons.

Firstly, it held that under Article 19(2) of the Indian Constitution, which authorises the parliament to make laws imposing “reasonable restrictions” upon the freedom of speech, in the interests of, inter alia, public order, decency or morality, and defamation, there must be a relationship of proximity between the speech complained of, and the prohibited 19(2) category. In the context of public order, this drove the court to draw a crucial distinction between “advocacy” and “incitement”. Advocacy of ideas, however unpopular and undesirable, the Court held, could not be criminalised. It was only when it reached the level of incitement that the law could step in and regulate, restrict or punish it. By drawing this distinction, the Court made it clear that mere ideas, or ideologies, could not be punished or proscribed simply for their communicative content. The limited situation in which interference with the freedom of speech could be justified was – to quote a previous case – restricted to a “spark in a powder keg.” Since the terms of 66A – “grossly offensive” and others – bore no such proximate relationship with public order, or with any of the other 19(2) categories, the provision was unconstitutional.

Secondly, the Court held that terms such as “grossly offensive”, “annoying and inconvenient” etc. were impermissible vague. Citing extensive American and Indian precedent, it held that vague laws were flawed in two fundamental respects: by not allowing citizens to plan their lives with any degree of certainty, they offended the rule of law; and by creating a very wide catchment area, they provided an impermissible degree of discretion to the police and the enforcing authorities. While vagueness has been mentioned by the Supreme Court in previous cases, this is perhaps the first time that a speech-restricting statute has been invalidated on the ground of vagueness.

Thirdly, it was held that the provision’s terms were over-broad. Over-breadth refers to a situation where a law is so widely worded, that is proscribes both speech that it is constitutionally entitled to limit, and speech that it is not. While examining the terms of S. 66A, the Court observed that because of their wide ambit, it was easy enough to contemplate how they covered situations that did not fall within the narrow boundaries of Article 19(2).

Fourthly, the Court noted that both vagueness and overbreadth were specially problematic when it came to speech restricting statutes, because they could result in a ‘chilling effect’. In free speech jurisprudence, the chilling effect refers to a situation where – because of overbreadth, vagueness, uncertainty or whatever other reasons – citizens unaware of the fuzzy dividing line between the legal and the illegal, end up self-censoring themselves even when it comes to legal speech. As the Court noted, the terms of S. 66A were framed in a way that the chilling effect was almost “total.”

The Court did reject, however, an argument claiming complete equivalence between the internet and other forms of communication, and asking for the striking down of S. 66A on that ground. In doing so, the Court noted that while the internet was a unique medium inasmuch as offences that did not exist earlier do now (such as phishing, spam and so on), that did not mean that the content of the free speech right changed, or the ground for adjudicating infringement must be made more flexible.

In concluding, it must also be acknowledged that the Court upheld the Blocking Rules, effectively maintaining the Executive’s power to block websites. Importantly, however, the Court also stated that the blocking order must be a reasoned and written order, which is provided not just to the intermediary, but also to the originator, so that it may be challenged before the High Court. And lastly, the Court clarified that intermediaries would not lose their immunity under Section 79(3) unless a take-down order came from the government or a court. This is significant because under the old regime, the intermediary had to assess the legal merits of private claims as well, which most intermediaries would have neither the resources nor the inclination to do. By releasing the intermediaries from that burden, the Court has ensured that much more free speech will be guaranteed than in the past.

In Bhullar, the Supreme Court relied upon a concurring judgment in the previous case of Triveniben, that appeared to hold that delay need not be a ground for commutation. The Court drew a distinction between ordinary capital crimes and capital crimes under terrorism statutes (at issue in Bhullar). It held that because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition need not be a ground for commuting the death sentence to life imprisonment. Thus, the Court had effectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to.

In Shatrughan Chauhan,the Supreme Court comprehensively rejected this reasoning. It held that the Bhullar court had overlooked the Triveniben’s majority judgment’s contrary stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam (i.e. decided without reference to an earlier relevant judgment, and thus having no force as precedent). The Court held, on the other hand, that:

“There is no good reason to disqualify all TADA cases as a class from relief on account of delay in execution of death sentence.” (para 63)

The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each case would be adjudicated on its own merits. In essence, the Court thus made delay an essential mitigating factor. This would be considered on the Court’s “balance sheet” enquiry, under which it draws up a list of aggravating and mitigating factors, in order to decide whether or not to award the death penalty in a particular case.

At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings (this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the point most forcefully). The inevitable mental agony that accompanies waiting for an inevitable death, demeans individual dignity. Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include treating all individuals with dignity, the judgment reaffirms the humanism that is the foundation the Constitution, and that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.

The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation (paras 71 – 78); this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions.

Coming to the fifteen individual cases before it, the Court applied the delay principle to commuted the sentences to life imprisonment. It ended by framing guidelines for the purpose in future, laying down various requirements such as the written communication of the outcome of a mercy petition to a convict and his family, the provision of free legal aid, a post-mortem report to verify whether hanging, as a form of capital punishment, caused undue amounts of pain, and so on.

The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea – say it softly – of State-sanctioned killing of human beings has no place in a civilized democracy:

“Remember, retribution has no Constitutional value in our largest democratic country.” (para 263)

In PUCL v. Union of India, the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. The combined effect of these rules was that persons who did not vote in elections were recorded (by the presiding officer) as having not voted. The petitioners argued that this was a violation of the right to secret balloting, protected – inter alia – by Article 19(1)(a) of the Constitution, which guarantees the freedom of speech and expression.

Relying upon the previous case of Kuldip Nayar v. Union of India, the State raised a preliminary objection on the ground that since voting was not a fundamental or constitutional right, but only a “statutory right” brought into existence by the Representation of Peoples Act, the petitioners had no standing to bring the claim.

Rejecting this contention, the Court distinguished between the “right to vote” and the “freedom of voting as a species of the freedom of expression“. [Paragraph 19] This is what explained the Court’s earlier decisions in PUCL v. Union of India and Association for Democratic Reforms v. Union of India, where – despite accepting that the right to vote was a statutory right, the Court nonetheless held that the right to know the antecedents of politicians, in order to exercise one’s franchise responsibly, was protected by Article 19(1)(a). [Paragraph 20]

The Court then found that in a system of direct elections, secrecy was essential to ensure the effectiveness of the vote.  Since the freedom to vote naturally included the freedom not to vote, it would be arbitrary to extend secrecy to one and not the other. [Paragraph 31]  It buttressed its argument by invoking Indira Nehru Gandhi v. Raj Narain and Kihoto Hollohan v. Zachilhu for the proposition that an effective democracy functioning through periodic fair and free elections is part of the basic structure of the Constitution. [Paragraph 45] In addition, the act of not voting was as much a positive exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection [Paragraph 49].  The Court therefore directed the Election Commission to introduce a “None of the Above [NOTA]” option into the Electronic Voting Machines. [Paragraph 61]

The judgment of the Court clarifies the constitutional status of voting. What does it mean to say that the right to vote is only statutory, but the act of voting is an exercise of free speech protected by Article 19(1)(a)? Essentially, that the right to vote is statutory insofar as the modalities of voting are regulated by statute (in case of India, the Representation of Peoples Act); eligibility for voting, when and in what manner, what rules political parties must abide by, and so on – these are matters determined by statute, and subject to the control of the legislature.

The act of voting, however, is – at least in theory – the most important act of expression through which the citizen participates in a representative democracy. So, while the right to vote remains a statutory right, parliament may not erect any formal or substantial barriers that render voting ineffective. The freedom to vote is – in its abstract sense – a constitutional and a fundamental right, the contours and lineations of which are to be worked out by parliament through statute.

This conclusion follows inexorably from Article 19(1)(a) and from the Constitution. Over more than fifty years, in a series of free speech cases, the Court has located Indian free speech law in a functioning liberal democracy where speech plays the important role. This would mean nothing if the basic mechanism that defines a representative democracy – periodic change in government through elections – was compromised or made ineffective.

In addition, Part XV  of the Constitution is devoted to the conduct of elections, including non-discrimination rules (Article 325).  Article 326 states that elections to the House and the Assemblies are to be on the basis of adult suffrage. These provisions assume the existence of elections as a prerequisite. Lastly, representative democracy – as the Court held – is a basic feature of the Constitution.

The Supreme Court’s judgment is a welcome step in affirming the centrality of the freedom of speech and expression to the domain of elections and representative democracy.

Gautam Bhatia completed his BCL from Oxford in 2012, and is presently an LLM candidate at the Yale Law School. A longer version of this post may be found on his Indian Constitutional law blog.

A brief legal background is apposite at this point. The Indian Constitution, originally, did not guarantee the right to education as a justiciable, legally enforceable right. It placed the right to education (Article 41), the provision of free and compulsory education for children until the age of fourteen (Article 45), and special provisions for educating the economically and socially weaker sections of society (Article 46) among the ‘directive principles of State policy’ (‘DPSPs’) – i.e., aspirational, non-enforceable legislative goals that the Constitution exhorts the government to try and achieve. Over the years, however, the distinction between the Bill of Rights (Part III), and the DPSPs has been elided by the judiciary in many ways, and particularly as far as education is concerned.  In Mohini Jain v State of Karnataka, for instance, the Supreme Court held that a ‘right’ to education ‘flowed from’ the enforceable right to life and personal liberty guaranteed by Article 21 of the Constitution, since there could be no ‘dignified enjoyment of life’, or the realization of other rights, without adequate education. Unnikrishnan v State of Andhra Pradesh gave specificity to the Mohini Jain holding by imposing an obligation upon the State, again flowing from Article 21, to provide free education to all children until the age of fourteen. The State responded to Unnikrishnan by amending the Constitution in 2002, and crystallizing the dictum of the Court in a new Article 21A. The RtEA 2009, then, enacted by the government to fulfill its obligations under Article 21A and Unnikrishnan.

Of particular interest to us is S. 12(1)(c) of the RtEA, which requires privately-run schools, receiving no aid from the State, to admit, ‘in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker sectionand disadvantaged group in the neighbourhood and providefree and compulsory elementary education till its completion.’ In other words, part of the burden of fulfilling Article 21A obligations is placed upon what, in strict technical terms, is a non-State entity (the private school).

In Society for Un-Aided Private Schools of Rajasthan v Union of India (the ‘RtEA case’) an association of private, un-aided schools challenged this provision, complaining that it violated their freedom to practice any profession, or carry on any trade or business, guaranteed by Article 19(1)(g) of the Constitution. This argument formed the core of the case, and the Court rejected it, on two grounds. First, Article 19(6) of the Constitution allows the government to impose ‘reasonable restrictions… in the interests of the public’ upon the 19(1)(g) right. The Court held that what was enjoined by a DPSP automatically counted as a ‘reasonable restriction’ under Article 19(6). Secondly, the Court held, in line with previous cases, that running a private educational institution could only qualify for protection under Article 19(1)(g) if education was to be treated as a charitable enterprise. That being the case, the Court implied that an arrangement requiring these charitable enterprises to help weaker sections of society was a reasonable restriction on their freedom. The Court went on to uphold the manner of classification provided by the RtEA, rejected the idea of ‘merit playing any role at the level of access to basic education, and exempted minority institutions from the purview of the RtEA.

Apart from an account of what the Court decided, it is also worthwhile to examine, briefly, what it did not decide. It did not decide the question of whether private schools were themselves subject to the obligations imposed by Article 21A. In Unnikrishnan, certain remarks made by Justice Mohan in his concurring judgment appear to imply that, since they perform a public function, private educational institutions may be subjected to providing equal treatment to all, as guaranteed by Article 14 of the Constitution. In the RtEA case, a slightly different argument was raised, asking the Court to apply the bill of rights horizontally in order to bring private schools under the ambit of Article 21A. It was rejected by Justice Radhakrishnan in his dissenting opinion, and not addressed by the majority. The question, for the moment, remains open.

Gautam is a recent BCL graduate at Balliol College, Oxford. He will be progressing to the MPhil  in Law at Oxford later this year.