Rajasthan Policy Academy is planning to bring out a biannual journal. The major focus of the journal will be to sensitize and inform the readers to new developments and debates in the area like internal security, police science, police training, police reforms, peace, terrorism, insurgency, intelligence, criminology, forensic science, law and order, law enforcement, cyber crime, organized crime, white collar crime, violence against women, juvenile justice and delinquency, prison, human rights etc.
Your article/ paper on the above mentioned areas is welcome on the following address:Centre for Research and PublicationRajasthan Policy Academy,Nehru Nagar, Jaipur – 302 016.Webiste: www.rpa.rajasthan.gov.inEmail: firstname.lastname@example.org
Wednesday, July 08, 2009
Navigating the Noteworthy and Nebulous in Naz Foundation -- Part II
Having celebrated Naz Foundation’s glorious ramparts yesterday, I turn now to critically appraise the decision’s side streets and alleys. I thought I would be able to complete that task in a single post today. However, after further meditating on Naz Foundation’s meaning, I think I need another post to do full justice to the case (and to save you from the exhaustion of reading). There are several disparate elements of the judgment that I discuss in today’s post. But I'm especially interested in the court's privacy analysis and consequential holding. In tomorrow’s post, I will focus on Naz Foundation’s discussion of the “compelling state interest” standard as well as its handling of the equality and equality protection issue.Before I resume my analysis of the judgment, I want to pay special tribute to petitioners’ counsel (and their many advisers) for their superb litigation strategy in this case. They did an exceptionally good job of marshaling and submitting a complex mélange of arguments backed by solid and first-class research. The written pleadings and oral arguments reflect considerable hard work, much internal discussion and organization, and careful planning. I’m especially impressed by petitioners’ decision not to ask the high court to strike down Section 377. It was a potentially risky decision. But it was a responsible one that helped ensure a successful outcome. Now back to Naz Foundation.1. Format and Style. Let me start with some structural quibbles. First, many readers complain that the judgment is 105 pages. I suspect that, after it is edited for publication in the law reports, the page count will go down considerably. I am disappointed, however, that the bench chose to adopt the tedious, standard template for Indian judgments. That template requires a detailed, and mostly superfluous, summary of arguments before a discussion of the issues. Consequently, pages 6 to 25 of Naz Foundation are a rambling regurgitation of the arguments presented by both sides. If this section had been considerably reduced or even eliminated, the judgment could have been considerably abbreviated.Second, although the text is divided into convenient headings to facilitate easy reading, each of the headings has the same font with no numbering scheme or outline to indicate how they relate to each other. This makes it difficult to identify the boundaries between major parts of the decisions. Third, text is so evenly formatted that it is difficult to determine, in many instances, whether a certain sentence is the bench’s observation or a verbatim quote from one of the many authorities cited in the judgment.2. Legal and Legislative History. The judgment has a very brief section on the legal history of Section 377. This section appears largely to rely on the account presented in Naz Foundation’s original writ petition. However, that reliance is incomplete for the judgment omits a critical paragraph in the writ petition, which explains how the introduction of Section 377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime.” It is unclear why the judges chose to ignore this paragraph borrowed from an important collection of essays on same-sex attraction. Perhaps, they felt that this issue would take them down the slippery road of interpreting religious and spiritual sources -- a journey fraught with potential for controversy, as Chief Justice Chandrachud discovered after his Shah Bano decision. It would have also required the judges to accept, deny, or at least comment on the petitioners’ loaded submission that Section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by historical evidence, could have made the judgment appear unnecessarily divisive.Laconically observing that the “Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India,” the judgment fails to mention anything about the statute’s colourful legislative history (“travaux preparatoires”). For instance, it could have referred to Macaulay’s decision to refrain from appending any guidance notes or illustrations to Section 377 (contrary to the practice for other parts of the Penal Code) motivated by his puritanical belief that the provision involved “an odious class of offences [about which] as little as possible should be said.” It could have mentioned, if the bench was so inclined, other historical nuggets, such as the fact that early offenders under this section could receive a whipping, in lieu of imprisonment, under the Whipping Act of 1864. In this respect, Naz Foundation is a bit of a disappointment, as I had fully expected it to discuss the statute’s Victorian background and why it had been enacted in order to understand why it is no longer relevant. In this respect, Naz Foundation is in stark contrast to the extensive discussion of legal history in the case it cites so extensively, Lawrence v. Texas.3. Review of Section 377 Caselaw. I find Naz Foundation’s discussion on Section 377’s case-law incomplete. Although the judgment refers to several leading cases (many from obscure and hard-to-find law reports), it does not tell us whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting Section 377 have changed from “the non procreative to imitative to sexual perversity.” If the judges intended to use “tests” as a moniker for “standards,” I’m afraid that the cases they cite offer them very little support. Those cases appear to have been discussing the object or intent of Section 377 (which varied from case to case) instead of the ingredients of the offence or the standards for sustaining a conviction under it.4. What Should We Call "Them?" The decision suffers from some taxonomical confusion about what to call those with same sex attraction given the diverse nature of groups involved. Discussing the petitioners’ standing in paragraph 6, the judgment refers to Naz Foundation’s work with the “gay community or individuals described as “‘men who have sex with men.’” It then states that, “for sake of convenient reference, they would hereinafter be referred to as ‘homosexuals’ or ‘gay persons’ or gay community.” Now, it does not seem particularly convenient to use three terms as a substitute for two. And where do these definitions leave lesbians, bisexuals, and transgendered persons? Are they subsumed within “homosexuals” or “gay persons”? What about those men who aren’t conventionally bisexual or homosexual but aren’t straight either because they have sex with men? Are they also homosexuals or gay persons under paragraph 6?The confusion over nomenclature is further compounded in subsequent paragraphs of the judgment because either the judges forget about the definition in paragraph 6 or simply decided against using it. Paragraph 50 refers to the “MSM and [the] gay community” (emphasis mine). But paragraph 52 mentions “MSM,” “lesbians,” and “transgenders.” And paragraph 61 reverts to the phrase “MSM and [the] gay community.”5. Government's Legal Representation. In paragraph 11, the bench notes that a “rather peculiar feature” of the case involved the Home Ministry and Health Ministry filing separate and contradictory affidavits about Section 377. Yet, the judgment goes on to accept the Home Ministry’s affidavit and arguments as the Union of India’s position without providing any explanation. The choice may have been obvious to the court, but it is not for a bystander like me.As a related matter, it is worth mentioning that, at various points in the judgment, the bench justifiably rejects the bizarre and absurd submissions made by the Additional Solicitor General (who appeared on the Union of India’s behalf) and castigates him for making them (see especially paragraphs 70-72). It even offers him a little civics primer when he questions the court's competence to exercise judicial review. It is amazing that the government’s position was presented so poorly and crudely in such an important case.Among the Additional Solicitor General’s arguments, which the bench rebuked, was his contention that Section 377 is not “prone to misuse as it is not enforced against homosexuals.” Now, besides the high court’s cogent reasons for rejecting this unsubstantiated statement, there was an additional justification for not accepting it. Under our federal scheme of governance, it is the state governments who control police and law-enforcement agencies. The Central Government has very little direct role in determining whether or not to prosecute a case under Section 377. Thus, it would have not been appropriate for the high court to have relied on the Additional Solicitor General’s statement on Section 377 prosecutions because he was not representing any of the states (they were not even parties to the proceedings).6. The Christmas Tree Effect. Reflecting the growing cosmopolitanism of the Indian judiciary, the case cites a large number of international and comparative constitutional sources. But unlike other contemporary decisions, the foreign citations in Naz Foundation are not mere ornaments or serial lights to make the decision sparkle. The case is among a handful of decisions in which judges rely on foreign precedents to actually shape an imaginative domestic outcome. References to Hong Kong, Fiji, and Nepal decisions in Naz Foundation are particularly important because they remind the reader that gay rights aren’t some luxurious western construct. The dates of many citations reveal that the bench continued to research the case long after it had been reserved for judgment.Yet, precisely because it includes so much material, Naz Foundation is like an over-decked Christmas tree with decorations obscuring virtually every bit of green. In some parts, the decision seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the Indian first case to actually cite a webcast!Furthermore, Naz Foundation is among the first cases that I’m aware of in which statements of the prime minister, health minister, and solicitor general are used as “unilateral declarations” (in the sense of the International Court of Justice’s 1974 Nuclear Tests Case) of the government’s position on Section 377 and attitudes towards men having sex with men. I suppose the court intended to formulate something like an estoppel doctrine using statements of high constitutional functionaries.Naz Foundation also relies on several international “soft-law” sources, such as the “Yogyakarta Principles,” and the “London Declaration of Principles on Equality” to argue that there is an emerging norm of international law on sexual orientation. As appealing as these principles might be, they hardly qualify as authentic sources of international law for they have been adopted by very few states. They are not general principles of international law, much less customary international law.7. Dignity Dimension. I liked the bench’s discussion of “dignity,” in paragraph 26. But I felt that the judgment could have elaborated a bit more on the reference to the “dignity of the individual” in our Constitution’s preamble (borrowed word-for-word from the Irish Constitution). Moreover, it is very surprising that Naz Foundation did not cite Kharak Singh here. In paragraph 16 of Kharak Singh, Justice Ayyangar makes a direct link between privacy and individual dignity enshrined in the preamble. This paragraph was subsequently reproduced as a block quote in Gobind. Why Naz Foundation did not use the quote is a mystery to me especially since it was attempting to telescope privacy with dignity – a maneuver first undertaken in Kharak Singh, a six-judge-bench decision of the Supreme Court.8. Privacy and Indian Constitutional Law. In yesterday’s post, I hailed Naz Foundation for expanding the doctrinal understanding of privacy. However, I believe that the bench’s analysis of privacy under our Constitution is far from adequate. Let us start with paragraph 35, which is located immediately below the caption “development of law of privacy in India.” This paragraph is devoted to a discussion of Kharak Singh (the largest Supreme Court bench to discuss privacy in any meaningful sense). In Kharak Singh, Justice Ayyangar, speaking for the majority, explicitly held that “the right to privacy is not a guaranteed right under our constitution.” However, he found that a state regulation, which permitted domiciliary visits by the police, was unconstitutional because it violated a “common law right to privacy.” He located this common-law right under the expression “personal liberty” under Article 21.In a separate and concurring opinion, Justice Subba Rao went much further than Justice Ayyangar and affirmed that the Constitution protects a fundamental right to privacy. In discussing Kharak Singh, Naz Foundation notes that the majority “did not go into the question” whether the police domiciliary visits “violated the right to privacy.” Yet, after referring to Subba Rao’s concurring opinion, Naz Foundation blithely concludes: “in effect, all seven learned judges held that ‘right to privacy’ was part of the ‘right to life’ in Article 21.” The High Court does not explain the basis for this sweeping sentence. It appears to have simply lifted it -- without proper attribution -- from the Supreme Court’s opinion in Canara Bank. Canara Bank is an embarrassingly bad opinion for a number of reasons, including its completely unnecessary digression into American constitutional theory, Just read it and you’ll see what I’m talking about!After Kharak Singh, Naz Foundation mentions Gobind (a somewhat maverick decision of Justice Mathew, which has been criticized for glossing over the majority holding in Kharak Singh) and Rajagopal (where Justice Jeevan Reddy largely followed Gobind on the privacy issue). In both decisions, the Supreme Court cautioned that privacy was not an absolute fundamental right and it would “necessarily have to go through a process of case-by-case development.” Yet, that admonition was conveniently forgotten by the Supreme Court in Canara Bank. As Naz Foundation accurately reports, Canara Bank concluded that the right to privacy has been accepted as “implicit in our Constitution.”While I acknowledge that Canara Bank is binding precedent on the Delhi High Court, I believe that Naz Foundation could have undertaken a more rigorous privacy analysis without simply cutting and pasting from Canara Bank. This is not unreasonable to demand from a bench, which demonstrated great skill in cherry-picking among conflicting Supreme Court decisions on application of the strict scrutiny test.Upon holding that there is a right to privacy under the Indian Constitution, Naz Foundation proceeds to articulate an untethered and delocalized understanding of privacy. Relying on that broad notion of privacy, paragraph 47 contains the poignant declaration that “[a] person cannot leave behind his sense of gender or sexual orientation at home.” It is unclear, however, whether this sentence is the high court’s own words or simply a quote from another source. Then, we stumble upon following statement (also in paragraph 47): “privacy allows persons to develop human relations without interference from the outside community or from the State (emphasis mine).” I’m tempted to stop and reflect further on the practical meaning of this remarkable observation, but I need to move on. So, I’ll defer to your comments about its wisdom.9. Privacy and the Vires of Section 377. Naz Foundation’s substantive commentary on privacy ends with the observation that Section 377 denies a gay person a right to full-personhood, which is implicit under Article 21 of the Constitution. Presumably, this is because Section 377 violates the unarticulated fundamental right to privacy. Yet, the thickness of this important conclusion is substantially undercut by the decision’s actual findings on the merits in paragraph 132. That operative paragraph of the judgment states that Section 377 is unconstitutional “insofar as it criminalises consensual sexual acts of adults in private” (emphasis mine).Based on the wording of paragraph 132, one cynical, but plausible, way to interpret Naz Foundation is that the new constitutional bar on Section 377 prosecutions applies only to sexual acts in a private dwelling or establishment. Under this interpretation, the section may still be freely applied to prosecute “non-private” conduct in a public place. Such a result would be particularly unfortunate because many documented instances of 377 harrassment have involved conduct in parks and other public places. They are quite unlike the police raid on John Lawrence’s bedroom, which was later declared a zone of privacy in the US decision, upon which Naz Foundation appears to have strongly relied.In some sense, the substantial disconnect between Naz Foundation’s soaring rhetoric on the concept of privacy and its parsimonious finding regarding the applicability of Section 377 illustrates the limitations of using privacy as a legal theory to challenge morality-based legislation. At first blush, privacy is a convenient and tempting shield to prevent the government from intruding into gays’ bedrooms. But it does not protect them when they leave their homes and affirm their bonds (even in the most benign manner) in public. It can be especially problematic in the Indian context because the “private” of many Indian gays is usually in the long shadows or dark corners of public places, like parks or beaches. For them, paragraph 132 does not seem to be a particularly liberating and emancipating holding.(This post, written entirely in my personal capacity, will be concluded tomorrow).
Thursday, July 09, 2009
Navigating the Noteworthy and the Nebulous in Naz Foundation -- Part III
This third, and final, post builds on posts of yesterday and the day before on the Naz Foundation Case. In today’s post, I discuss, among other things, the Delhi High Court’s use of “compelling state interest” as a standard for assessing fundamental rights infringements as well as its handling of the equality and equal protection issue.
1. Compelling State Interest and Morality. Paragraph 75 of Naz Foundation appears under the caption “morality as a ground of a restriction to fundamental rights.” This paragraph discusses restrictions on the conjoined fundamental right to privacy-dignity as well as the fundamental right to health. The bench begins by stating that a law infringing a fundamental privacy right must satisfy a “compelling state interest.” It correctly attributes this standard to Justice Mathew’s Gobind opinion. It then travels beyond Gobind to hold that the enforcement of public morality is not a compelling state interest to “justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private.” To paraphrase Justice Mathew’s own words in Keshavananda, “I have tried, like Jacob of the Old Testament, to wrestle all night with the angel,” namely, the use of the “compelling state interest” standard in Indian constitutional adjudication.
I certainly have no quarrel with the general proposition that enforcement of morality is not a compelling state interest, much less an important or even a marginal interest. However, I believe that Naz Foundation’s use of the “compelling state interest” standard here is completely out of line with prevailing Indian precedents. It is true that Justice Mathew proposed and used the “compelling state interest” standard in Gobind to determine whether the regulations at issue in that case past constitutional muster. I believe he was so greatly enamored with recent American decisions on contraception and abortion that he readily imported their teachings to India without adequate due diligence. It is one thing to refer to foreign precedents to expand the meaning of the fundamental rights, it is quite another to import constitutional standards to assess restrictions on those rights from a jurisdiction with a different analytical framework for constitutional questions.
It should be pointed out that the “compelling state interest” standard, which Justice Mathew enthusiastically adopted in Gobind, is part of the U.S. Supreme Court’s strict-scrutiny test to screen restrictions on fundamental rights. That test was judicially developed largely because the American Constitution provides little textual guidance on what restrictions can be imposed on fundamental rights. In India, the situation is rather different because our Constitution has “in-house” rules with specific grounds on which “reasonable” restrictions can be imposed on most fundamental rights (see, e.g., Article 19 (2)).
In fairness to the Naz Foundation bench, I should point out that Justice Mathew was a fairly consistent advocate for varying applicable of judicial review depending on the subject involved. For instance, in Ambica Mills, he argued that laws regulating economic activity should “be viewed differently” from laws which concern freedom of speech and religion, voting, procreation, or criminal procedure. He would defer to legislative wisdom on economic laws and exercise greater vigilance in other areas (of course, his deference to economic laws was in the context of India’s flirtation with socialism during the 1970s!).
Aside from Gobind, I am hard pressed to find any major decision that either affirms or applies the “compelling state interest” standard. Rather, as Naz Foundation, itself, says in paragraph 25, after Menaka, any interference with life or personal liberty “must be right and just and fair and not arbitrary, fanciful, or oppressive.” This “just, fair, and reasonable” standard has been the generally applicable benchmark to assess governmental action for past three decades now. One way to reconcile the apparent contradiction between paragraphs 25 and 75 in Naz Foundation would be to apply both standards together. In others words, every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair, and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest.” If this interpretation of Naz Foundation is correct, I’m afraid it is a rather radical restatement of the law.
Another way to resolve this conundrum would be to only apply the Gobind + Menaka formula to questions about penumbral or uncodified rights like privacy and health. Questions concerning codified rights would only have to meet the Menaka standard. But this solution would imply a higher constitutional bar for actions affecting penumbral rights than those actions affecting textual rights. This outcome would be irrational since penumbral rights are, in fact, derivatives of textual rights.
2. Substitution of Morality Standards. Let me turn now to the impressive manner in which Naz Foundation redefined the morality argument and turned it on its head. Rebutting the notion that public disapproval of homosexual conduct is an accurate barometer of morality, Naz Foundation brilliantly argues that it is “constitutional morality” rather than popular morality that ought to be the applicable yardstick. This aspect of Naz Foundation is, perhaps, what I like most about the case and underscores why I believe it is a landmark decision. The idea of a controlling “constitutional morality” is in, some sense, a continuation of the bench’s insistence on a secular approach in the judicial process case without risking a footfall into religious or sectarian ditches.
At the same time, I do not believe that Naz Foundation’s substitution of constitutional morality for popular morality is a silver bullet. Just consider the spaghetti bowl of inconsistent Supreme Court decisions on whether there is a constitutional right to trade in liquor or if it is res extra commercium. Some of our most enlightened justices have tied themselves up in knots over this issue because of their concern about its underlying moral implications. I should also point out that Naz Foundation does not imply that any morality-based legislation or governmental action is no longer permitted. Rather, it argues that that public disapproval is not an adequate reason to restrict a fundamental rights.
3. Implied Desuetude of Section 377. I want to end my discussion of morality in Naz Foundation by focusing on a most intriguiging sentence in paragraph 86, which reads:
In fact, the admitted case of the Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same-sex conduct does not serve any public interest.
In this passage, the court was referring to the Additional Solicitor General’s argument that Section 377 should be saved because it was not being enforced against homosexuals. The high court initially rejected this contention in paragraph 74 as contrary to evidence and testimony proffered by the petitioners. Yet, interestingly, the bench returns to this argument in paragraph 86, but only to turn tables on the government. It reasons that, if Section 377 has not been used to prosecute adult same-sex conduct, one can legitimately question whether such conduct should at all be criminally proscribed. In other words, if a statutory provision has fallen into disuse, why bother maintaining it?
Although Naz Foundation does not refer to it, there is, in fact, an old common-law doctrine called “desuetude” that supports this line of reasoning. This doctrine has, in fact, been recognized by the Indian Supreme Court in Municipal Corporation v. Bharat Forge, (1995) 3 S.C.C. 434, and it is a pity that it was not considered in this case. Perhaps, it was because petitioners were not confident that they could satisfy all the elements of the doctrine. For desuetude to set in, the statute in question must have been in disuse for a substantial period of time and some form of contrary practice must have evolved during this period.
4. The Equality Detour. As a threshold matter, I wonder why the bench even bothered addressing the equality argument. It had already resolved that Section 377 violated the penumbral fundamental right of equality-dignity, which was sufficient ammunition for its conclusion that Section 377 was unconstitutional. In fact, it is for this reason that the bench felt it was unnecessary to deal with the argument based on the fundamental freedoms in Article 19. Could not the same approach have been taken with respect to equality?
In my view, the equality section is Naz Foundation’s Achilles' heel. The discussion on equality begins with the bench conceding in paragraph 94 that Section 377 is facially neutral. Yet, the bench points out that the “sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class” (emphasis mine). I’m afraid this part of the judgment is not completely watertight and may not convince an appellate court. As a textual matter, the section proscribes sexual acts involving carnal intercourse that are considered “unnatural” irrespective of whether they involve same-sex or opposite sex partners. Case law under the section shows that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that anal sex is not an exclusive homosexual preserve; many heterosexual couples routinely engage in it. And oral sex is commonly practiced by both same-sex and opposite sex partners. Therefore, this aspect of Naz Foundation could be particularly vulnerable on appeal.
To bolster its reasoning that Section 377 is hostile to gays, the bench cites Justice O’Connor’s opinion in Lawrence in which she held that the underlying statute in question targets homosexuals as a class. But what it fails to mention is that the Lawrence statute only targeted homosexual conduct; it was even called the “Texas Homosexual Conduct Statute.” This made it convenient for Justice O’Connor to find it violated the U.S. Constitution's equal protection clause. It is for this reason, that Justice O'Connor was able to file a concurring opinion in Lawrence (Justice Kennedy's majority opinion in that case was completely silent about equal protection). In fact, O'Connor remained unrepentant for her previous opinion in the Bowers Case, where the underlying statute, like Section 377, applied to both same-sex and opposite-sex conduct.
I entirely agree with Naz Foundation that, in implementation, Section 377 “does end up unfairly targeting a particular community.” However, I'm skeptical about whether the Supreme Court will accept this argument. There do not appear to be many cases in which a facially neutral law has been successfully challenged on the ground that it is enforced in a discriminatory manner. Perhaps, I'm influenced by what happened in Rathinam with respect to Section 309 of the Penal Code, which criminalizes an attempt to commit a suicide. Initially, the Bombay High Court struck down Section 309 on the ground of equal protection. It found that the provision did not provide adequate guidance and was susceptible to arbitrary application. However, the Andhra Pradesh High Court took a contrary view. The Supreme Court agreed with the Andhra Pradesh High Court, both in Rathinam as well as in Gian Kaur (which overruled Rathinam). Justices in both cases rejected the challenge to Section 309 on equal protection grounds. Don’t get me wrong; I strongly believe that Section 377 has a disparate and invidious impact on gays. I just don't think that this argument could be a winning one under prevailing Indian jurisprudence. I'll be very happy to be proved wrong.
5. The Dynamite of Non-Discrimination. I am still trying to unravel the true meaning of the high court’s holding on Article 15 (1). However, I must applaud the bench's precedent-setting conclusion that sexual orientation is a valid anti-discrimination marker under Article 15 (1). In fact, this aspect of Naz Foundation is sheer dynamite! If this holding is sustained on appeal by the Supreme Court, it has the potential to fundamentally reorder the Indian legal system. Just think about it. Article 15 (1) makes it illegal for the State to discriminate on various grounds, such as sex, place of birth, race, caste, or religion. If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy. Regretably, on this issue, the homophobic appellants before the Supreme Court do have a point.
6. Obiter on Horizontal Discrimination. In my view, the bench went on a “frolic of its own” by declaring in paragraph 104 that Article 15 (2), the Constitution's public-access provision, proscribes “horizontal discrimination” on the ground of sexual orientation. This was a completely unnecessary observation that had nothing to do with the underlying case. The writ petition did not contain any allegation about private discrimination against gays, and there does not appear to have been any substantial discussion of this issue during oral arguments. Therefore, I can only conclude that the bench misdirected itself to address this non-issue. Accordingly, I believe that the bench’s observations regarding Article 15 (2) are only in the nature of obiter.
7. Strict Scrutiny. Just as I take issue with Naz Foundation’s use of the “compelling state interest” standard under Article 21, I have serious reservations about its wisdom in needlessly importing the American doctrine of strict scrutiny to invalidate Section 377. As the bench admits in paragraph 110, the use of strict scrutiny has been decisively rejected by the Supreme Court in Ashok Kumar Thakur. Yet, Naz Foundation insisted that it could still use strict scrutiny based on the Supreme Court’s decision in Anuj Garg. The bench reasoned that, upon a “harmonious construction” of the two Supreme Court judgments, strict scrutiny would not apply to affirmative action, while it would to apply to disadvantaging measures targeting a vulnerable group based on personal characteristics.
I’m afraid I find the high court’s reasoning on this issue to be rather disingenuous for several reasons. First, Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a constitution bench decision. Second, Ashok Kumar Thakur was the later decision, handed down several months after Anuj Garg; and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench. Third, there is nothing in Ashok Kumar Thakur to indicate that its refusal to apply strict scrutiny was only confined to affirmative action. Fourth, how do we reconcile the high court’s cute reasoning with the Supreme Court’s 2003 decision in John Vallamattom. The case involved the constitutionality of Section 118 of the Indian Succession Act (affecting the right of Indian Christians to make so-called death-bed charitable dispositions. It was not an affirmative action decision by any stretch. Yet, in it, Justice Khare said he was skeptical about the application of strict scrutiny in India.
I have the same concerns about using strict scrutiny to evaluate equality and equal protection claims under our Constitution as I do about using the “compelling state interest” standard to assessing fundamental rights violations under Article 21. The two American doctrines are, in a sense, two sides of the same coin. Strict scrutiny was invented to scrutinize classifications because the U.S. Constitution does not contain anti-discrimination provisions, such Articles 15 and 16, of our Constitution, and it requires a showing of a compelling state interest in order for a suspect classification to be upheld.
In India, our Supreme Court has generally applied rational-basis review to evaluate most classifications. From a tactical perspective, the bench could have applied this long-standing test and concluded, based on the evidence, that Section 377 flunked it. This would have been a better strategy, in my view, than subjecting Section 377 to a more stringent test, whose application is likely to be challenged before the Supreme Court.
8. Concluding Observations. Naz Foundation’s use of the severability-in-application doctrine is certainly a creative extension of the Supreme Court’s decision in Chamarbaugwala (ironically, that case advocated caution in the use of American precedents). However, I should note that the Supreme Court’s observations on severability, which Naz Foundation relied upon, were made in the context of a legislature’s competence to enact a statute based on the division of powers in the Seventh Schedule. They did not involve a statute that was found unconstitutional for violating fundamental rights. Be that as it may, Naz Foundation effectively used Chamarbaugwala to retain Section 377 on the statute book even though it was found to be unconstitutional on several grounds. I have some concerns about this Solomonic solution, but I respect the high court’s pragmatic decision under the circumstances.
Finally, my friend and classmate, Ramaswamy, offers an interesting alternative road that the high court could have taken in resolving this matter. According to him, the case could have been presented as a matter of statutory interpretation rather than constitutional law focusing on the phrase “carnal intercourse against the order of nature” in Section 377. The high court could have ruled that sex between consenting same-sex adults was not “carnal intercourse against the order of nature.” I leave it to you, our readers, to tell us what you think of this idea.
Is the Naz Foundation decision the Roe v. Wade of India?
There are surprisingly few constitutional cases in India which have had the same symbolic power that cases like Roe v. Wade (affirming the right of abortion) or Brown v. Board of Education (dissolving racial segregation in schools) have had in the political history of the United States. For sure, there are a number of important constitutional cases which have contributed significantly to the democratic history of India. Kesavananda Bharati’s espousal of the basic structure doctrine, Maneka Gandhi’s introduction of due process in Art.21, but these cases seem to have an appeal largely within the legal fraternity. They are also cases where the relief sought by the petitioners have had little to do with the final outcome of the case, and it is highly doubtful whether his Holiness Kesavananda Bharati had any investment in the long term impact of the basic structure doctrine (not to mention that Kesavananda Bharati just doesn’t roll of the tongue as easily- in terms of recall value). Is it possible then that Naz Foundation v. Government of Delhi is the first equivalent of a case whose name conjures up the history of particular struggle, celebrates the victory of a particular moment and inaugurates new hopes for the future.
Before we argue about why Naz has the potential to become a Roe v. Wade, it would perhaps be useful to establish what Roe v. Wade and Brown v. Board of education did for the history of struggles for rights in the US. R v. Wade stands as the dividing line between the Liberals and the Conservatives in the US and in the third presidential debate between Obama and McCain, a significant portion of time was spent discussing judicial nominations, particularly to revisit Rv. Wade. Every Republican president since 1980 has asked for an overturning of Roe v. Wade.
R v. Wade emerged at a time when many feminists and women’s rights activists were encouraging State legislatures is to liberalise their abortion laws. Given the rather haphazard success in the arena of legal reform, another strategy was to shift the battle to the courts and success in cases like R v. Wade made it irrelevant whether or not there was a success in policy reform. There have been a fair number of critics of this strategy too, with people arguing that political reform is generally more desirable and longer lasting than judicial reform. Ruth Ginsberg for instance has argued that Roe v. Wade actually halted a political process that has been moving in a reform direction.So the first characteristic of cases like Wade is the use of the judiciary and innovative interpretations of the Constitution to settle a controversial area and establish rights for unpopular minorities or to establish a ruling against public morality as defined by the majority. But if this were the only criteria then there would be many more cases with the same appeal and power as Wade and Brown. Both Wade and Brown represent moments in the history of struggle that finally culminated in a judicial victory. These victories have been higher significant because they generally exist in the realm of what we could call the radical politics of impossibility. What would have been impossible to imagine is suddenly made possible through an innovation that does not merely change the conditions of the group whose rights and demands are in question, but changes the horizon of possibility for the law and for constitutional interpretation itself.
Thus Roe v. Wade did as much for the expansion of the idea of privacy as it did in establishing the right of women to terminate their pregnancy. These cases are also marked by the fact that they often open a Pandora’s box and are in that sense not the culmination of struggle, but the beginning of one. But even these two reasons would not be enough to establish what is special and enduring about Brown and Wade. These are after all matters of public reason, and public reason rarely the accounts for why things have a special place in our hearts. It therefore might be appropriate then to turn to reasons of the heart to see why something becomes a Roe v. Wade.When Obama was a senator, he voted against the confirmation of John Roberts, the current chief justice of the United States, and a well known conservative. In his speech in the Senate, Obama said Justice isn’t about some abstract legal theory or a footnote in a casebook. It is about how our laws affect the daily reality of people’s lives – whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. Obama added that while he would agree with 95% of the decisions arrived at by Roberts, ‘ in those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decision about whether affirmative action is an appropriate response to the history of discrimination or whether the general right of privacy encompasses a more specific right for women to control their reproductive decisions, the critical ingredient is supplied by what is in the judge’s heart.
The real success of Wade, Brown and Naz foundation can then be measured not only by their contribution to democratic ethos or the Jurisprudence that they inaugurate but by the tears that they provoke. The spontaneous outburst of emotion on the pronouncement of the Delhi High Court, the tears of joy that people had while listening to the judgment in Court hall No. 1 of the Delhi High court, or from people following it on the news, the telephone calls with people wishing each other happy Independence Day after the judgement – these are the things that legendary cases like Wade and Brown are made of. And these are all the ingredients that seemed to be present in the Naz foundation decision. When was the last time you remember crying about a constitutional decision? Naz foundation decision has also enabled the rekindling of our romance with a text whose recent career has left one a little brokenhearted – the constitution. Justice Pathak in Kesavananda Bharati says that “the constitution is not an arena of quibbling by lawyers with long persons. It is a Heritage or possession and it should be the object of your love”.The Naz foundation judgement once again makes the constitution worthy of our love and affection. It is of course too early to say whether this romance with Naz will stand the test of time, and like all relationships there will be disenchantment, disgruntlement and perhaps even cynicism that will creep in, but for now let us enjoy the slightly trippy lightheadedness that only a new love is capable of providing and toast the much delayed but very welcome arrival of the Roe v. Wade of India.
Date:06/07/2009 URL: http://www.thehindu.com/2009/07/06/stories/2009070655810800.htm
Opinion - Leader Page Articles From ‘perversion’ to right to life with dignity
The Delhi High Court judgment makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.
“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.” — B.R. Ambedkar quoted in para 79 of the Naz Foundation judgment.
The recent judgment of the Delhi High Court in the Naz Foundation versus Government of NCT of Delhi and Others is a milestone in the jurisprudence on diversity and pluralism in India. Importantly, it also inaugurates intersectional jurisprudence that examines questions of constitutionalism in relational terms that underscore inclusiveness. By this token then, it is not merely a judgment that bears significance for the rights of lesbian, gay, bisexual and transgender peoples (LGBT). It makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.
The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity launched on March 26, 2007 were drafted by experts from 25 countries representative of all regions of the world. These principles delineate in painstaking detail the obligation of states to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. On December 18, 2008, the United Nations General Assembly was presented with a statement endorsed by 66 states from around the world reaffirming in substance the Yogyakarta principles. It is these international efforts along with the movement for LGBT rights within India that provided the context and arguments for the decriminalisation of homosexuality.
Drawing on Dr. Ambedkar, the court rejected the argument that homosexuality was contrary to public and popular morality in India, upholding constitutional morality instead, the diffusion of which was contingent on Dr. Ambedkar’s ideas of notional change, as evident in the lines quoted above. To quote from the judgment: “The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality” (para 80). Linked to this is the observation of the Court on the question of the horizontal application of rights, with specific reference to Article 15(2), a barely remembered but critical part of Article 15: No citizen shall obstruct another from access to public places on grounds of caste, sex and other specified grounds (para 104). This purposive and intersectional reading of Article 15(2), hitherto restricted largely to practices of untouchability vis-À-vis Dalits, opens out an important strategy in constitutional interpretation.
Applying the U.N. Human Rights framework to an understanding of sexual orientation and gender identity, the judgment sets out three categories: (a) non-discrimination; (b) protection of private rights; and (c) the ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.
Perhaps the most important issue the judgment addresses is the meaning of “sex” in Article 15(1) of the Constitution of India: “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Does the term “sex” in this context refer to attribute or performance? Is sex to be applied in a restricted fashion to gender or can the multiple resonances of its common usage be taken into account, so that sex is both gender (attribute) and sexual orientation (performance)? This is particularly significant because, as the judgment demonstrates through an extensive review of case law and principles from different parts of the world, gender and sexual orientation are an intrinsic and inalienable part of every human being; they are constituents of a person’s identity. In the words of Justice Sachs of South Africa, the constitution “acknowledges that people live in their bodies, their communities, their cultures, their places and their times” (Sachs J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice). It is this composite identity of every person that is affirmed through a nuanced reading of “sex” in Article 15(1): “We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15 (Para 104).”
Justice P.N. Bhagwati’s delineation of the right to dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, that “the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life, … expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings,” provides the starting point for the discussion on the importance of self-respect, self-worth and privacy to human social life, recognised nationally and internationally. And privacy is particularly important in the area of sexual relationship where the thumb rule is simply that “[i]f, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy (Paris Adult Theatre I v. Slaton, (413 US 49 (1973), page 63).”
The criminalisation of homosexuality, the judgment says, by condemning in perpetuity an entire class of people, forcing them to “live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery” denies them “moral full citizenship (para 52).” Because Section 377 is aimed at criminalising private conduct of consenting adults, the court held that it comes within the meaning of discrimination, which “severely affects the rights and interests of homosexuals and deeply impairs their dignity(para 93).” It is “unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India (para 98).”
The right to public health is another aspect of human rights that is seriously undermined through the criminalisation of same sex behaviour. There are two parts to this right, both of which lead back to the fundamental right to life under Article 21. The first is the right to be healthy. In this context, the concerns of the National AIDS Control Organisation (NACO) are pertinent. Fear of the law-enforcement agencies obstructs disclosure, which in turn impedes HIV/AIDS prevention programmes and increases the risk of infection in high-risk groups.
The second part of the right to health is more expansive and includes the right to control one’s health and body, the right to sexual and reproductive freedom, the right against forced medical treatment and the right to a system of health that offers equality of opportunity in attaining the highest standard of health. While several documented testimonies of LGBT persons speak of the treatment of their sexual orientation as a psychiatric/mental disorder, the judgment importantly affirms the findings worldwide that sexual orientation is an expression of human sexuality — whether homosexual, heterosexual or bisexual. “Compelling state interest,” instead of focussing on public morality, the judgment says, “demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon (para 86).”
Asserting that there is no presumption of constitutionality where a colonial legislation is concerned, the judgment holds that Section 377 fails the test of “strict scrutiny” which would require proportionality between the means used and the aim pursued. And when it is a question of “matters of ‘high constitutional importance’” like the rights of LGBT persons, the courts are obliged to discharge their sovereign jurisdiction, in this case, reading Section 377 down to apply only to child sexual abuse.
It is pertinent to point out here that the Andhra Pradesh (Telangana Areas) Eunuchs Act specifically targets Eunuchs and Hijras in far more direct ways than Section 377 does. We hope that the momentum of the movement for LGBT rights will turn its full force on obsolete legislation like this as well, so that transgender communities in areas where such laws are in force begin to enjoy the fullest freedoms and life with dignity.
(Kalpana Kannabiran is a sociologist based in Secunderabad.)
© Copyright 2000 - 2009 The Hindu
The law benders
Posted online: Friday , Jul 03, 2009 at 0324 hrs, http://www.indianexpress.com/news/the-law-benders/484408/
New Delhi : You seem to have gathered much evidence that homosexuality is not a disease,” Chief Justice A P Shah told the petitioners arguing against Section 377 in court, “unlike the (other side’s) lawyers, who have argued that ‘homosexuality is a matter of fun’.” The asymmetry in legal arsenal is no coincidence. The petitioners, Naz Foundation along with ‘Voices against 377’, had an army of young lawyers to wade through India’s Byzantine case law history, refer to parallels across the world and produce affidavit after affidavit. And they all did it for free. The lead lawyer for ‘Voices against 377’ was Shyam Divan. Helping him were a host of lawyers armed with impressive degrees. Shrimoyee Ghosh, Jawahar Raja, Arvind Narain, Mayur Suresh and Vasuman Khandelwal are all young lawyers from National Law School, Bangalore.
Naz Foundation, the petitioner, was represented by Anand Grover from law firm Lawyer’s Collective. His arguments focused on linking health concerns of homosexuals to their ‘right to privacy’, in turn linked to their right to dignity. Assisting him were Trideep Pais, and Tripti Tandon — involved with the case since the beginning. Shivangi Rai and Mehak Sethi, both from India’s top law schools, rejected the lure of high paying corporate jobs to fight the case. “We are not just activists,” Rai says. “So we use our legal skills to make a persuasive case in court, not just shrill rhetoric.”
Why did they fight for free? For Mayur, it was his own gay identity, while for others like Vasuman it was the need to accord dignity to homosexuals.
Posted online: Friday , Jul 03, 2009 at 0427 hrs
The historic judgment reading down Section 377 in the Delhi high court on Thursday chose its words very carefully. It turned for help to an older moment, a moment of origin. Citing the constitutional debates of 1946, it reminded us of another India. An India that was being imagined just as it was coming to freedom. Nehru urged, in those debates, that we see the Constitution in its spirit rather than in any narrow legal wording. On Thursday, Judges Shah and Muralidhar sought to unearth that spirit. “If there is one constitutional tenet,” they argued, “that can be said to be the underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations.” A few lines later, they argued further: “Indian constitutional law does not permit criminal law to be held captive by popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antitheses of equality and that it is the recognition of equality which will foster the dignity of every individual.”
Court one, item one on the Delhi high court’s cause list. Ten thirty in the morning on the 2nd of July. A high court pass secured by a few dozen activists each of whom was remembering moments from the last decade of fighting Sec 377. It is these simple words and an electronic pass receipt that a movement lasting decades and a legal battle lasting eight years came down to. In the end, it was enough. When the judgment was read, you could feel the emotion in the room. Our tears flowed not just because we had “won”. They came for the judgment that had set us free. This judgment is a judgment about dignity. It is about an India that Nehru imagined — an India that would open its arms and embrace all who lived within it. It is about the words equality, dignity and rights finding roots in the lives of millions of queer Indians who today can feel their feet on the ground of their own country.
This judgment is a return to Ambedkar. The judges reminded us of the Ambedkar who so passionately fought for the constitution of his imagination. In Ambedkar’s India, he wrote fervently that the courts of law of our land must be ruled by a “constitutional morality” and not a public morality. State interest, he argued, cannot be governed by public morality but by the spirit of the Constitution. In the days to come, as morality debates will no doubt flood our media and public spaces, we must keep this other morality equally in mind. A morality that we share as citizens, not just as individuals.
This judgment is about equality. Citing Article 15 of our Constitution, the judges ruled that “sex” as commonly used in non-discrimination statutes must also include “sexual orientation”. Non-discrimination legislation based on gender/ sex now can be read to include sexual orientation. Reading Article 15 into the judgment, the judges have reminded us decriminalising queer people also means simultaneously treating them with equal respect in jobs, in hospitals, in our homes and in our public places.
Yet how do we read this judgment not just as queer people but also as Indians no matter our sexuality, gender, religion, caste, language or region? Movements across this country have and continue to struggle for their rights. Frustrations with the government and the “system” are commonplace. Many have argued that change is not possible in India and even less in the new India, which in its shine has separated from the Bharat that so many inhabit. This judgment is a renewal of faith in the system so many of us — this writer included — find so easy to almost lose faith in. It is a reminder that the Constitution is still alive, and that movements and fights sometimes end in days of victory. All Indians must celebrate that — it is not just queer rights that were protected today, but all the rights of all Indians.
We will remember tomorrow to be more cautious. The queer movement has long said that the fight for the dignity of queer people will not be won just in the courtroom. Our fights are in the spaces where homophobia impacts people’s lives: families, clinics, police stations, offices and the streets of our cities. The law will not change these spaces overnight. Our fights are far from over. This judgment, however, has untied our hands. Our debates now to change public opinion will be played on level playing fields amongst citizens as equals. We have the words of this judgment and the chance to make them come alive outside the courtroom.
The biggest change, however, will be within the hearts and minds of queer people. The process of accepting ourselves, of not being ashamed, of believing in our right to have rights is a long and lonely one. The process of thinking of ourselves as equal citizens takes even longer. This judgment will change what a young queer woman sees when she’s in the mirror. There are no words to explain what that means or how valuable it is.
For the government of India and its ministers, who recently have spoken about Section 377, they should read this judgment closely as they come to their “consensus”. They should ask themselves which of the tenets of this judgment they wish to consider and reconsider. They should remember that Ambedkar and Nehru imagined statesmen and women in their assemblies. The day has come for them to return, along with the rest of us, to that imagined assembly.
Inclusiveness, values, tolerance, constitutional morality, equality. In the older imagination of India, these words would not be just about queer people or homosexuality. Today, these have taken the first step to become Indian words again. The judges have reminded us that these are the ingrained values of Indian culture that so many are trying to “defend”. This judgment should be seen by all of us, gay or straight, no matter what we think of sexuality and homosexuality, as a victory for a secular, democratic, constitutional and free India. We should all be proud. Today, queer people are finally, proudly, happily also just everyday Indians — free, equal, and breathing deeply the air of a day that feels like no other.
Today, queer people are fellow citizens. Today, queer people will finally feel the ground below their feet.
The writer works on urban policy email@example.com
Find the judgment at:
22nd June 2009
The Minister for Minority Affairs,
Government of India
Paryavaran Bhavan, CGO Complex, Lodhi Road,
New Delhi 110 003
[Re: Equal Opportunity and Diversity]
In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.
As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.
These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.
For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:
A. Interlinking equal opportunity and diversity:
(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.
(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.
B. A general duty to reduce inequality:
(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.
C. Scope of protection against discrimination:
(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.
(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.
(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.
(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.
(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.
(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.
(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.
D. Scope of diversity promotion:
(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.
(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.
(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.
(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.
(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.
E. Enforcement Mechanism:
(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.
(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.
(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.
(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.
(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.
(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.
(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.
(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.
(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.
These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.
CC: The Prime Minister
Government of India
CC: The Minister for Law and Justice
Government of India
(Text drafted by Tarunabh Khaitan for CSSE, NLSIU, with inputs from Roopa Madhav, Kamala Sankaran and Usha Ramanathan)
CALL FOR PAPERS
Volume 14, 2010
Law’s Theatrical Presence frame, rhetoric, image, body, appearance
Guest editors: Marett Leiboff and Sophie Nield
This issue of Law Text Culture seeks to explore law through the lens of theatrical and performance theory and to read theatre through the paradigm of law. The ‘theatrical’ of which we speak is not that of words or playtexts, drama or literature, nor is it solely the ‘performative’ as a universal referent to any form of enacted public practice. The field of performance studies has certainly expanded in past decades into social and political analysis, but at the expense of the potentially useful theatrical frame. The revitalised field of theatricality, rather than pivoting around acting, costumes, props and stages, allows us to foreground ideas of frame, the body, appearance, rhetoric, and image as key intersections for understanding the work of the law in producing, shaping and staging justice.
The line between reality (truth, perhaps) and its representation is an energised question in theatre and performance studies currently, and one of the key theoretical perspectives being drawn on is Agamben’s modelling of jurisprudence in relation to the current legal states of exception, public resistance and terror. The relationship of the law and the theatre as twin sites of appearance and representation is, we hope, provocative: the ‘frame’ of the theatre and the ‘being framed’ of the law may speak to each other in useful ways.
Law and theatre more infamously intersect where law is used to regulate and repress. Here, it is law that frames actions, bodies, images and events, through the regulation of events, especially those involved in resistance. How law then responds to these actions is a prime site of contention, in particular where these events are filmed and recorded. A personal decision to frame, film, record and display lives online provides a challenge to law, where the boundary between action as real and action as constructed becomes blurred and confused in the online world. Can delineating actions as ‘theatre’ perhaps be a manoeuvre through which to render some sites as ‘real’ rather than commercial, if issues of copyright infringement or privacy needed to be addressed? Theatre as a practice and as a concept may, we hope, be useful here to the law in providing a means by which boundaries can be set where everyone and everything is engaged in performance.
The places in which courts and tribunals sit are ‘theatrical’: spaces to watch and be watched, where ritual and rhetoric may be used to impress judge and jury; where probable and improbable narratives of events are constructed out of speech acts and stylised dialogue. Theatre theory may, we propose, here be used to uncover the limitations of these narratives. We invite contributions exploring how the work of theatre theory - Brecht and Meyerhold, Grotowski and Artaud, Piscator and Schechner, theatre anthropology and Dario Fo, to name a few - might be drawn upon as a ‘theatrical jurisprudence’.
There are also several real-world contexts in which law and theatrical practice are already working in tandem: the recent spate of ‘tribunal’ plays in the UK which often temporally overlap the already theatricalised legal processes which they seek to reproduce; the involvement of performance scholars in the management of restorative justice; the controversial use of verbatim ‘testimony’ of displaced persons, refugees and victims of war in theatre productions.
In order to explore these, and other, questions, we seek scholarly articles, artworks, reviews, and creative writing from legal and theatre studies scholars and practitioners on topics including, but not limited to:
Performance and restorative justice in indigenous contexts
'Tribunal theatre' and the restaging of public inquiries and war crimes tribunals
Theatricality and politics
Theatrical/legal appearance and representation
Legal orators and rhetoricians
Indigenous law and practice, performance and story telling
Theatre theory as jurisprudence
Theatrical licensing and censorship
Histories of theatrical court cases
The use of theatre in teaching law
Theatre techniques in dispute resolution
All scholarly articles will be subject to independent peer review, while all other submissions (artworks, reviews and creative writing) will be considered by the guest editors in consultation with the Managing Editor of Law Text Culture.
Abstracts/expressions of interest: 30 June 2009
London October 2009
Wollongong December 2009
Deadline for draft articles February 2010
Publication December 2010
For information please contact guest editors:
Marett Leiboff Sophie Nield
Faculty of Law, University of Wollongong
WOLLONGONG NSW 2522 Department of Drama and Theatre
University of London
Freedom of Association in India and International Labour Standards
Violence Against Women in South Asian Communities
Issues for Policy and Practice
Edited by Ravi K Thiara and Aisha K GillForeword by Professor Liz Kelly CBE
Paperback, ISBN: 978-1-84310-670-8, 234mm x 156mm / 9.25in x 6in, 256pp, October 2009, £25.00, $44.95
Creating Student-Centric Space for Socio-Legal Writing
The ‘Socio-Legal Review’ is an initiative of the Law and Society Committee that hopes to inspire socio-legal writing among members of the legal and social science community. It aims at exploring themes relating to the interface of law and society and providing a platform for students and young scholars. The Committee is keen to give ‘law and society’ an expansive interpretation, thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link.
This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.
This year’s Editorial Board has decided to continue with the policy of not imposing a theme. A contribution is eligible as long as fits in with the general mandate of the journal. The manuscript should be on any theme exploring the interface between law and the society. Each volume of the Socio-Legal Review consists of Articles, Comments and Laws’ Translations. Law’s Translations consists of shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. This section is designed for the student researchers, legal practitioners, field staffers, and activists who often have the most significant insights to contribute, but the least time to write longer, scholarly articles.
The first issue of the ‘Socio-Legal Review’, published in 2005, carried the theme ‘Law and Marginalisation’. The first issue included contributions from Shail Mayaram (Senior Fellow, Centre for Study of Developing Societies, Delhi), Sivamohan Sumathy (University of Peradeniya, Sri Lanka), apart from contributions from within the National Law School. Themes ranged from ‘Poverty, Migration and Memory in the Mega-City’, ‘Migration and ‘Displacement of Sri Lankan Tamil Women’, ‘Globalisation and the City-zen’ to ‘Reservation Policy of India and Rawls’ Theory of Justice’ and ‘Contours of the Dalit Movement’.
The second volume, published in 2006, has articles by W. T. Murphy (London School of Economics) and Rajeev Dhavan (Advocate, Supreme Court). As a theme was not imposed on contribution, writing ranged from subjects as varied as the pharmaceutical industry and patents to the impact of genetics on theories of crime and punishment. The third volume of the journal, released in August 2007, includes contributions by Dr. Fiona Kumari Campbell (Griffith University) and Dr. Narnia Bohler-Muller (Nelson Mandela Metropolitan University, Port Elizabeth), besides contributions from law students. The fourth volume released in August 2008 contains contributions by Roger Cotterell and Ofer Raban as well as student articles. This volume introduces a new section titled ‘Conversations’ in which Roger Cotterrell and Ofer Raban respond to Brian Tamanaha’s thesis on the instrumentality of law. Prof. Ron Harris contributes with a piece on political parties in Israel. We are happy that we have been able to attract student writing on South Asia as this volume has articles by students at Yale Law School, Harvard Law School and the National Law School of India University.
In May 2008, the Socio-Legal Review, in conjunction with the Law and Society Committee at the National Law School, conducted a workshop on ‘Encouraging Socio-Legal Writing on University Campuses’. Attended by members of our Advisory Board such as Upendra Baxi and Nivedita Menon and young academics and students, the enthusiastic discussion at the workshop bodes well for the future of socio-legal writing in the region.
Since 2007, Socio-Legal Review has been fortunate to have been funded through a generous three year grant from the Modern Law Review. This year, based on an assessment of the journal, the editorial board of Modern Law Review has renewed the funding for the next three years. This grant has been instrumental is providing us financial security and permitting us to concentrate our efforts on improving the journal and indeed, working on our mandate of creating a student-centric space for socio-legal writing in South Asia.
for the Editorial Board, Socio-Legal Review
Misplaced Priorities and Class Bias of the Judiciary Prashant Bhushan
It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the “war on terror”, “development” and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.
Lokniti - Programme for Comparative Democracy, Centre for the Study of Developing Societies (CSDS), Delhi, in collaboration with Indian Institute of Advanced Study (IIAS), Shimla invites candidates to apply for a two week Summer Workshop on Research Methodology: Analyzing Quantitative Data on Indian Politics to be held at Shimla from Monday, 15th June 2009 to Saturday, 27th June 2009. Research training in Political Science remains one of the weakest aspects of learning for any student in India. Keeping this in view we plan to bring together a group of young political scientists with the aim of providing them an opportunity to improve their skills in quantitative analysis. While some of our mid-career colleagues would be invited to attend the summer school, we will select candidates from across the country for the limited seats that are available through a process of competitive selection. In this Summer School there will be a special emphasis on making sense of quantitative data of both aggregate nature and survey data for analysis of Indian politics. The selected participants will be given a set of readings before they come to attend the workshop and will be expected to attend lectures and practical data analysis sessions. This is the Third Summer School being organized by CSDS and IIAS beginning in 2007. Some of the leading scholars working on empirical methods in Political Science have been involved in designing this summer school and will act as resource persons. These include Pradeep Chhibber (University of California at Berkeley), Peter deSouza (IIAS, Shimla), Irfan Nooruddin (Ohio State University), Yogendra Yadav (CSDS), Suhas Palshikar (University of Pune) and Sandeep Shastri (IACT). We invite the following categories of candidates to apply for this workshop: a. Teachers of Political Science in colleges and Universities who are working on empirical subjects and would benefit from further training.b. Research students of Political Science who are working on empirical themes for their M. Phil. or Ph. D. dissertations and can benefit from further training.c. Any other person (including those from outside Political Science and outside academia) who are interested in making sense of politics by analyzing quantitative data. We would give preference to young scholars. We have only about 16 seats to be filled through selection and we expect a tough competition. Please send your detailed CV with a statement of research interest (those already registered for M. Phil. or Ph.D. should clearly mention the topic of dissertation along with a brief summary of the objectives and methodologies used) in about 500 words. Applicants should also visit our website http://www.lokniti.org/index.htm; access the questionnaire used for National Election Study 2004 and write a 500 word Note on a research question based on this questionnaire that interests them. Selection for the workshop will be made on the basis of the two write-ups submitted by candidates as mentioned above. The last date for receiving the nomination/application is 23rd March 2009. We will not entertain any nominations/applications received after the above-mentioned date. The Summer School is sponsored by the IIAS and the Institute will meet the travel expenses (Train AC II or its equivalent) of the participant from his/her place of residence to Shimla both to and fro. IIAS will also provide free accommodation and food during the Summer School. Please note that this is a full time residential training course and candidates admitted to the workshop are expected to stay at the Institute and engage in full time work on all days during this period. Please send your nominations/applications by email to firstname.lastname@example.org or by snail mail to: The Co-directorLokniti: Programme for Comparative Democracy Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110 054. India