The road to hell is paved with good intentions: Eminent domain doctrine in India & the lack of due process

This post was first published in The Leaflet. 

M. Hakeem had approached the apex court with high hopes for increased and ‘just’ compensation against the acquisition of his land under the National Highway Authority of India Act, 1956 by the government. The district revenue officer, who sets the compensation, had set a measly compensation far below the market value of the land. When Hakeem challenged the compensation, an ‘arbitrator’ was appointed to set a new compensation. The only twist being that the arbitrator in this case could only be appointed by the central government, who unsurprisingly, is another government official. He again set a compensation far below market value. Frustrated, M. Hakeem approached the Supreme Court. The court in Project Director, NHAI v. M. Hakeem unflinchingly reiterated the settled position when it comes to compensation under the act, that court had no competence to enhance the compensation and could only either set the award aside, or remit it back to the arbitrator. In other words, somehow, when it comes to land acquisition and compensation, the central tenet of a strong judiciary i.e. judicial review, disappears. M. Hakeem, like many others, was left with whatever measly amount the government bothered to give him for his land, and no recourse. However, inability of courts to adjudicate on compensation of land acquisition in nothing new and such injustice is unsurprising when we consider the history of eminent domain doctrine in India.

Setting the stage

Even though some jurists argue that defining private property is impossible, we all have an idea of what the term means in common parlance - any property that is privately owned and not meant for public use.

To understand why property rights enjoy a central position in constitutional history of nations, we need to understand three main arguments. First, that a robust right to property is a pre-condition for establishing a liberal and progressive society. It is based on the idea that all human rights essentially boil down to property rights. Second, because property rights essentially answer the question - ‘what is the best use of this resource’ – only that person who owns it, or who comes to own it through a system of voluntary exchange, should have the right to make this decision. No one else, not even the state should make the decision for him. Third, the Lockean idea of constitutional protection of private property is based on the notion that rights are not created by the constitution, but are only protected by it. Such an understanding implies that constitution and the sovereign cannot take away property involuntarily. It has been widely recognised both in courts, and scholarship that strong property rights are a sine qua non to economic prosperity. In Delhi Airtech Services Pvt Ltd v. State of U.P the court opined – “It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government”. 

Eminent domain, simply put, is the state’s power to acquire private property against the consent of the owner for ‘public purpose’. There are three commonly accepted elements to it. First, the taking should be under a valid law. Second, the land owner must be paid just compensation. Third, the acquisition of the property should only be for public purposes. To understand, why even now, countless people like M. Hakeem are cheated out of the value of their land with the courts being reduced to meek spectators - we need to go back to our founding. 

A very old problem

Article 31 has the distinction of being one of the most debated and the most amended provision of the constitution. The constituent assembly under Nehru was clear about the fact that India would be formed as a socialist state.

However, at the time around 40-60% of the land in India was owned by wealthy landlords, or zamindaars - and such concentration of economic and social power went against the socialist logic. The state wanted to bring large scale agrarian reforms and land redistribution, but this meant that under the then constitutional regime that protected against arbitrary taking of private property – all such zamindaars would have to be paid compensation for their lands. Thus they were in a conundrum. If they compensated these wealthy zamindaars, it would lead to the same inequality that the reforms aimed to deconstruct. With one side arguing for giving no compensation against acquiring zamindaari land and the other side arguing for robust property rights and just compensation, the debates were mainly centred on how to solve the zamindaari issue without creating unchecked eminent domain power for the state. As I will show now, the assembly failed to do either.

Out of this tension, article 31 was born. Article 31(2) mentioned only ‘compensation’ instead of ‘just’ compensation, and article 31(4) and 31(6) stated that if the parliament passes any law that contravenes this article – it could not be invalidated by any court. The assembly feared that if they used the term ‘just’ compensation, the courts would step into their agrarian reform agenda and thwart it, either by setting an adequate compensation or invalidating the law itself on grounds of violation of fundamental rights. So they bypassed the issues by structurally depriving the courts of their power of judicial review, thereby driving a coach and four through due process of law.

The original sin of the framers was that they took themselves to be fortune tellers when they were not. They believed that the inequality consolidated in colonial India would simply be replicated in a free India without their central planning. They failed to understand that this inequality was a product of colonialism – where neither man, nor commerce was free. And, in free India where both were free, the same inequalities would break down with time. A short history of the legal and political battle that the government fought with the judiciary aiming to establish a command and control economy is reproduced below and also available here.

The ghosts of yesterday

The questionable history (and thus present) of eminent domain practice in India betrays due process is two ways. Procedurally - by wholly depriving the courts on adjudicating on the quantum of compensation itself as seen in M. Hakeem and, substantially – by depriving the courts of adjudicating on whether the taking constitutes a valid use of eminent domain doctrine or not.

This is sinister yet unsurprising because the constituent assembly itself never intended to observe due process of law. And the ball that they set rolling is still bulldozing the property rights of countless individuals. It is also important to notice how the assembly, in their obsession with the zamindaari problem, myopically drafted the taking clause which talks about property generally, as if it was only to be used for agrarian reforms. Because the assembly wanted to take away land for agrarian reform without paying the compensation, instead of creating an exception for the same, they included this lack of due process is the clause itself. Which meant that the government could choose to not pay just compensation for taking away any property and not just property for agrarian reform. And this is precisely what happened. Drafting a clause with the intention to be misused specifically, will with time, be misused generally.

The culmination of this history is twofold. First, is that we still do not have a clear and defined idea of precisely when (beyond the vague public purpose test) is it legitimate for the government to take away land, and thus as a result lack substantive restrictions upon that power. Which is why numerous people like M. Hakeem can have their lands taken away from them because the government simply states that their land is required for ‘public purpose’ without the courts going into the merits of the claim. Second, even when such power is exercised legitimately, the consistent practice of depriving the courts from adjudicating upon the justness of the compensation continues to constitute a fraud on the judicial power of the court and constitution, and continues to constitute an unjust exercise of state power. Which is why people like M. Hakeem, even when their land is legitimately needed for public purposes, are never paid just compensation.

Where are we now?

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - the generic takings legislation in India does define public purpose, but the net it spins for what constitutes public purpose is as wide as imaginable and thus offers no real change from its previous act – the land acquisition act, 1894 which did not define public purpose at all.

Even though, LARR provides for challenging the compensation by approaching the high court – most individuals whose lands are taken away are poor and cannot bear the cost of litigation. A study of 1660 judgements from the Punjab and Haryana High court showed that the average compensation is only about one fourth of the market value of the land. Given that the default in land acquisition cases is measly compensation, the NHAI act is even more notorious in so far as it does not even provide for effectively challenging the compensation set by the government at all, with the arbitrator being a government employee himself and the court not being competent to enhance the arbitral award.

Since land is on concurrent list, many states have either severely diluted the LARR to skip basic requirements or have completely bypassed the act by invoking outdated legislations through their power under article 254(2). Many states also use these outdated laws to acquire land for purposes that may not come strictly under the public purpose definition - such as constructing an oil refinery, suitable accommodation to public servant (University of Bombay v. Municipal Commissioner of the city of Bombay), opening a burial ground (Valliammal v. state of Madras and Others) etc. Given that these are not strict public goods, what legitimacy does the state have to exercise its eminent domain powers in these cases? This is exactly where the lack of a strong eminent domain doctrine hurts us.

Thus we currently need two things. First, is to grant courts the ability to decide on compensation in order to ensure that people get just compensation. And secondly, to develop a robust doctrine of eminent domain use itself – through legislative codification and judicial decisions.

A (very) short explainer on the new IT Rules & Traceability provision

NOTE: We don't inhabit a fragmented reality. Nothing around us can be isolated from the catastrophic effects of the pandemic we're witnessing. All further posts on this blog will carry this caveat until there is some reasonable accountability established and substantial actions taken against the state's criminal abdication of responsibility.

1. What are the new IT Rules 2021?

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 are rules laid down by Ministry of electronics and Information technology in exercise of the powers conferred to it by IT Act, 2000 regarding regulation of social media intermediaries, OTT platforms and online news aggregators.

2. Why have these rules been in news?

It is because India, for the first time has given law enforcement agencies the statutory backing to legally mandate companies defined as ‘significant social media intermediary primarily in the nature of messaging’ to give out information about the ‘first originator’ of the information concerned. In other words, it is the first piece of legislation that legally demands certain intermediaries to break the end to end encryption technology built into their platforms to ‘trace’ the first originator.

3. What is end to end encryption?

End to end encryption simply means that technology which enables any and all of the communication between two users over a platforms that support E2E to be securely encrypted so that nobody, not even the platform can access the contents of the conversation.

4. What is a significant social media intermediary?

A ‘significant social media intermediary’ is a social media intermediary with over 5 million users. A ‘social media intermediary’ means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services’.

5. Who is a first originator?

An originator as defined in the IT act. 2000 is ‘a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary’. Therefore ‘first originator’ is the first person who does the things envisioned in the definition.

6. What is the traceability provision in the rules?

Commonly called the ‘traceability provision’, section 4(2) of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 says, ‘A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form’.

It further lists four conditions to be fulfilled for exercising powers under this section:

a) An order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years

b) That no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information

c) In complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users

d) Where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.

The government or the relevant authority has a choice between securing a judicial order or an order under section 69, IT Act 2000 for exercising power under this provision.

7. Can the first originator be identified without breaking end to end encryption?

Most Lawyers and cyber security professionals say no.

8. Why has Whatsapp filed a case against the Indian government for enforcing IT rules?

Whatsapp recently filed a case against the Indian government for enforcing the IT rules, particularly the traceability provision. In the lawsuit it claims that the traceability provision is in violation of the right to privacy guaranteed under the Indian constitution under article 21 and confirmed by the Puttuswamy decision.  

Investigating sex equality under Law through feminist jurisprudence - Part II

This is the part II in the two part series discussing sex equality under law through feminist jurisprudence. In part I, I had laid down the foundational logic of feminist jurisprudence and various feminist debates surrounding equality under law. In this part I will proceed to discuss and evaluate various Indian court decisions concerning sex discrimination, and trace the development of court's logic from a separate sphere theory to a transformative understanding of substantive equality under law.

Sex discrimination in the courts:

Employed with male logic and male laws in front of most likely a male judge, or a female judge who has been initiated into the male vision way of thinking about the law and thus equality, the task of reimagining and arguing for equality is full of epistemological effort. Mackinnon argues that since law is male, the notions of objectivity and neutrality that it is based on are established by the dominant male vision. She argues that the male point of view is so pervasive and near perfect that it has co-opted the idea of equality. Such a system is bound to eliminate female systems of thinking and ways of seeing. Feminists challenge the very idea of a value free position standing from where justice can be dispensed in a gendered reality.

The feminist scholar Wendy Williams argues three ways by which courts play an important role in debates about equality. Firstly, the way courts describe and understand equality has a larger bearing on how the society understands equality. Secondly, legal cases are often the focus of equality debates in popular culture and activism. Thirdly, such participation in cases also show us the societal perceptions with respect to ideas of equality and rights.

Closer home in India, the constitution gives us the right to equality, and equal protection of laws under articles 14-18, the so called equality code. More specifically article 15 lists sex as one of the prohibited grounds for discrimination. The courts in India initially engaged in what Gautam Bhatia calls a formalist reading of equality provision. The formalist reading is characterised by a diluted scrutiny of the actual grounds of discrimination that failed to find the real source of discrimination. As will be elucidated later, the legal reasoning employed in such cases is characteristic of gendered vision of equality. Courts have many times been complicit in the subordination of women while not unlocking the true potential and meaning of the right against discrimination under the constitution.

Mahadeb Jiew vs B.B. Sen involved the challenge to Order XXV, Rule 1 of the Code of Civil Procedure (1908). The rule allowed for security to be taken from plaintiffs in a legal proceeding in case they lost the case and were unable to provide the cost of litigation. For men, the rule only mandated security to be taken if they did not possess sufficient immovable property in India, and were living out of India. For females on the other hand taking security was mandatory if they did not poses sufficient immovable property regardless of where they were living. The Calcutta HC engaged in a formalist reading of Article 15 i.e. they held the rule to not violate article 15(1) because they opined that the reason of discrimination in an Aristotelian sense was sex and property, not sex alone. They interpreted that since article 15(1) only prohibits discrimination on sex alone, existence of other grounds not based on sex would make any such discrimination immune to such challenge. R.S. Singh vs State of Punjab involved challenge to government orders disqualifying any women to be appointed to any post in men’s jail (except clerk or matron). The HC held the discrimination to be valid and based its reasoning on the separate sphere theory. It stated that as long as there were ‘natural differences’ between the sexes, the same difference could be used to create such classification.

Air India v. Nargeesh Meerza: Separate Sphere & superficial scrutiny

Air India v. Nargesh Meerza involved a challenge to service rules that mandated Air Hostesses to retire at 35, or on marriage (if they married within four years of joining the service), or on their first pregnancy, whichever occurred earlier. The court’s reasoning to uphold the service rules was steeped deep in the separate sphere theory. The court opined “Art. 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination.” While modifying the rule which mandated Air hostesses to leave service on their first pregnancy with 'third pregnancy' the court did not change the other provisions. The court observed that the provision of discharging service of AHs who married within four years did not suffer any ‘constitutional infirmity’ because such rule would lead to a ‘successful marriage’ and good ‘family planning’. 

There are three points to be made here. First, the court failed to observe that the reasoning employed in creating a classification between men and women under this rule is based on stereotypical ideas of capabilities and archaic roles of the respective sexes, and therefore is based on sex itself. This amounts to sex discrimination thereby violating articles 14,15 and 16. Second, the objective for such rules was to avoid the additional costs of hiring AHs on an ad-hoc basis to cover for those AHs that married within first four years of service and conceived a baby. Therefore, the rule is not merely discriminating on basis of ability to marry (which is not a prohibited ground under articles 15, and 16) but is discriminating on account of pregnancy. Discrimination on pregnancy is sex discrimination itself, and thus such a rule should have been struck down by the court. (Delhi HC's opinion that holds discrimination on pregnancy as sex discrimination - here). Third, this case is an interesting point that describes the inherent restrictiveness of the grounds of review under the classification test.

The classification test involves two steps. First there should be an intelligible differentia based on which the classification has been made, and secondly - there should be a rational nexus between the reasonable classification and the state objective. Discrimination between the sexes by itself does not violate equality clauses of the constitution (men and women in many instances have separate toilets, queues, modes of employment etc.) as long as these twin tests are satisfied. In this case, there was an intelligible differentia between the classes i.e. persons who can get pregnant (women) and persons who cannot get pregnant (men). Such reasonable classification also has a rational nexus to the state objective being sought i.e. efficiency and avoiding high expenditure by not allowing Air hostesses to marry and consequently conceive. There are two ways to solve this dilemma. First is to espouse a higher standard of proportionality review i.e. to ask the question of whether a less restrictive method can be used to achieve the state objective without discriminating against the right in question. Second is a heightened standard of scrutiny under rational nexus test that asks two further questions i.e. if the state interest is compelling enough to warrant the discrimination and if the classification made is necessary and balanced. The court has often used an alternative method of scrutinizing equality violation called the arbitrariness test. In it the court often looks if the state action is inherently unreasonable and arbitrary. The test is ill defined and does not require a classification to take place for article 14 violation. In the present case, the manifestly arbitrary route can be taken by arguing that eliminating Air Hostesses employment only for marrying within four years of service curbs the exercise of their consent and agency, and leaves them unemployed with a very little chance of re-skilling and gaining any other employment. A rule that has these effects can be argued to be arbitrary and unreasonable for women. Underlying a lot of these arguments is the sense of increasing the burden of proof on the state for violating any of the fundamental rights. Tarunabh Khaitan argues that a rigorous standard of review should be espoused by courts in fundamental rights violation because they are no ordinary rights and demand special consideration.

The court’s reasoning in these cases displays what Mackinnon argues to be ‘law’s maleness in the very form of legal reasoning privileging male reality’. Court in Mahadeb, Singh & Meerza used patriarchal notions of gender and reality to adjudicate on substantive equality. The sense of ease and obviousness in these decisions is a testament to the extent of male vision nature of law itself. The courts also did not venture into the question of whether the other in sex plus other grounds of reasoning was in turn built on the very same notions of discrimination that article 15 was established to eliminate.

Breaking away from this formalist reading, the Delhi HC in Walter Alfred Baid vs UOI which involved a challenge to a rule that only allowed females to be senior nursing tutors, stated that ‘it is difficult to accept the position that a discrimination based on sex is nevertheless not a discrimination based on sex “alone” because it is based on “other considerations” even though these other considerations have their genesis in the sex itself’. Thus finally realising that the sex plus other ground itself is steeped in discriminatory theories of differences between sexes, and thus cannot be argued to not be a discrimination on sex alone. Rani Raj Rajeshwari Devi vs State of UP involved a challenge to a rule that allowed the government to declare any women ‘incapable of managing their property’ without any qualifications. The Court held that the form of the differences and its basis was irrelevant as long as the effect of such legislation was to treat identically placed men and women differently. It espoused for heightened scrutiny in sex discrimination cases to delve deeper into the real origin of the ‘differences’. The court opined that no legislative classification could be based on generalized or stereotypical characteristics attributed to either men or women and based on gendered notions of reality.

Anuj Garg & Transformative constitutionalism

Anug Garg & Ors. v. Hotel Association of India & Ors. involved a challenge to section 30 of the Punjab excise act, 1914 which prohibited employment of any male under 25 or any female in premises where liquor or intoxicating drug is consumed by the public. The court, holding the legislation unconstitutional espoused for a standard of strict scrutiny and stated that “Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role”. Thus the court finally in a feminist jurisprudential reading of the law understood the couched language of male vision bias inherent in law and argued for a nuanced understanding of what the effect of such classification was, and if the classification in turn was based on stereotypes and discrimination itself. When Anuj Garg stated that ‘any such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women’ it was explicitly reading into our constitutional protection of equality a substantive test of equality long held by feminist scholars that holds that the real test of any sex discrimination legislation is to see ‘whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status’. Anuj Garg thus laid down a very important precedent of strict scrutiny when apparently ‘objective’ and ‘natural’ notions of differences between the sexes form the basis of sex discrimination.

Gautam Bhatia argues Anuj Garg to be a transformative reading of the article 15 on two counts. First it states that under 15(1) legislation should be tested on the institutional and systemic effects and not only on state’s intended aims and goals. Second, in no way can any discrimination be allowed which is based on stereotypes about roles, capabilities and capacities of the sexes. This he argues becomes important not only because of the heightened scrutiny that accounts for the ground reality and the how a classification based on discriminatory theories of the sexes propagates and entrenches sex subordination, but also because state is very unlikely to expressly invoke stereotypes to enact legislation which is prima facie discriminatory. Anuj Garg lays the foundation of strict scrutiny of such legislations that on the face may appear neutral and objective (as per the male vision bias of logic and reality itself) but end up propagation and entrenching systemic inequality of women, thus exploring a new chapter of substantive equality.

Conclusion

It is argued that for equality jurisprudence to be truly transformative rather than merely ‘inclusive’ the understanding of substantive equality has to be rooted in understanding how ‘inequality as rooted in political, social and economic cleavages between groups, rather than the result of arbitrary or irrational action’. A constitutional commitment to equality is thus also a commitment to recognise, organise and change the systemic inequalities that entrench such discrimination. Mackinnon calls the law ‘Treacherous, uncertain, alien and slow’, but at the same time argues that it is too powerful in its potential to be ignored by feminists. Thus a commitment to feminist jurisprudence is a commitment to epistemological and psychological sophistication in law, and to investigate the genderization of the law itself, to question everything. To reimagine not only how law is applied, but the law itself.

Note: This two part series benefits immensely from Gautam Bhatia's work on sex discrimination in Indian courts that can be found here & here and Tarunabh Khaitan's scholarship on understanding equality under Indian constitution that can be found here & here.

Investigating sex equality under Law through feminist jurisprudence - Part I

NOTE: We don't inhabit a fragmented reality. Nothing around us can be isolated from the catastrophic effects of the pandemic we're witnessing. All further posts on this blog will carry this caveat until there is some reasonable accountability established and substantial actions taken against the state's criminal abdication of responsibility. 

In this two part series I aim to analyse conceptions of sex equality under law and its discontents through a feminist jurisprudential lens. Part I lays down the foundation of feminist jurisprudence and elaborates on debates surrounding meaning of sex equality under law. Part II proceeds to use the framework thus developed to discuss and critically evaluate various Indian cases that involve a question of sex discrimination. Finally I trace the development of court’s reasoning in sex discrimination cases from a separate sphere theory approach to a transformative understanding of equality.

To question everything: Introduction to feminist jurisprudence

From Austin’s command theory that argues that Law is whatever the sovereign commands with a threat of sanction, to HLA Hart’s positive law theory that argues for separation of law and morality - the understanding of law has constantly been challenged. But no school of thought has challenged the very essence of ‘the law’ as much feminist jurisprudence has. The inability of law as a social tool to account for and accommodate female experience is at the core of this feminist enquiry.

There are no set definition of what is feminist jurisprudence, however there is an underlying commitment to question the inherent assumptions of the law. Catherine Mackinnon defines it as "an examination of the relationship between law and society from the point of view of all women”. The starting point of all feminist inquiry in law is to argue that objective reality is a myth. Feminist scholars argue that there is no such thing is an objective or un-gendered reality, the world around us and the institutions we have built (such as law) are premised on a male understanding of the world. The reasoning, logic and truth are all weapons used by men to institute rules, procedures, and traditions in a way that benefit men over women. The notion of objective, non-situated universal reality irrespective of whether believed by men or women is a by-product of exposition of the male’s dominant point of view. Thus law is a tool of social organisation based on domination.

Scholars argue that male is a social and political concept rather than a mere biological criteria. The standard of rationality, objectivity and universality even if not most men’s inherent outlook appears as subconsciously rational to them. Women are forced to define their own reality and existence in terms of such male reality. The male reality is systemic and hegemonic. The conceptions of what counts as truth is produced by those with power which in turn while cloaking itself in a myth of normativity and objectivity serves as a tool to distort world views and power relations in the interest of male.

Thus the feminist jurisprudential analysis of law is to ask the feminist questions. The core of feminist jurisprudential enquiry is shared by Critical Legal Studies in so far as both try to uncover the way in which institutions and norms such as law legitimises, distributes and preserves power in the interest of a particular section of society while marginalising the others. The school of thought is involved in seeing, describing and analysing the harms of patriarchal system of laws and to imagine a non-patriarchal world for women. However scholars have argued that since male-ness is a deeply entrenched epistemological concept that binds all genders, it is important to deconstruct the male vision episteme and ways of enquiry. Male centric legal scholarship is to law what law is to patriarchy, each reinforces the other. To be true to the vision of feminist jurisprudence, not only does one have to ask the right questions, but also limit the distortion of female experience. Feminist vision means understanding and implementing female experiences and methods of analysis and acknowledging that personal is political. It is important to note that feminist jurisprudence is not limited to formal inclusivity in the sense of being inclusive as one goes on (a pattern that sex discrimination law displays, something we will discuss later), but is inherently built on a politics of inclusion. It accounts for the lost narratives and methods of enquiry that may have been lost in the male analysis of law from a situated perspective. 

Therefore feminist scholars argue that the state itself with its institutions is male in so far as it was constituted by men and serves male interest by rules, processes, norms and tradition. It is built upon the subordination of women. In a way male power has become the state, and the state is male in so far as the male centred objectivity is the norm.

Feminist Enquiry into Sex equality

Having argued that law is made from an inherent male vision, and that the law thus in its operation entrenches gender subordination, feminist scholars have critically questioned conceptions of equality under sex discrimination law and have argued that a male vision standard is the implicit measure of equality under sex discrimination law.

Our notion of equality for a long time has been Aristotelian. Equality means to treat like persons alike, and unlike persons unlike. Under this conception of equality the state or sovereign has to show some difference to justify disparate treatment. Irrespective of the kind and origin of discrimination, as long as some differences could be pointed out between the sexes, it would justify disparate treatment in an Aristotelian sense of equality. This lack of clarity on which grounds of differences warrant disparate treatment have become the critical point of much legal debate and discussion.

Many of the earlier court decisions regarding sex discrimination read this positivist Aristotelian idea into dogmatic notions of differences between men and women, often characterised by the separate sphere theory. Under this theory women were to inhabit the private sphere of the household and men were to inhabit the outer public sphere. Women were to attend to children, the household and cater to the family’s needs while the man had to go out and earn money for the family. Thus such discriminatory conceptions of differences between the sexes were used by courts in earlier sex discrimination cases to argue for validity of disparate treatment since a classification based on stereotypical difference between sexes could validly imply such disparate treatment.

There are various schools of thought in feminist jurisprudence with respect to sex equality under law and much debate among them. One version of debate is sameness versus difference. The core disagreement is with respect to the real meaning of equality. Some feminists like Ruth Bader Ginsberg have argued for over the board equal treatment with no special rights. Whereas difference feminists argue for recognising and accommodating for differences between men and women and forming special laws for women that compensate them for their roles. Many radical feminists have argued that by engaging in a vocabulary of differences based on the mythical nature of objective reality and logic riddled with male vision epistemology, difference feminists in a way can be argued to concede to the anti-feminist logic of different and thus inferior.

The second version of this debate is differences versus domination. Difference feminists also argue that since there are fundamental differences between men and women therefore, the only root of discrimination of women is a male centric approach to law. Implicit in this argument is the belief that to ensure gender equality, one only needs to find the finite grounds of difference between men and women and then adjust the law accordingly. Scholars have criticised this tendency to classify and differentiate to ask for special rights by arguing that even if we employ sophisticated methods to arrive at these differences, “We only encourage the law's tendency to act upon a frozen slice of reality. In so doing, we participate in the underlying problem-the objectification of women”. They argue that not only do we need to accept differences as emergent and infinite but that this ‘incorporationism’ is built on the false belief in objectivity of law, that once these sexist laws are removed, we can achieve gender equality. Male supremacy is not a set of random irrationalities in an otherwise perfect law but a whole hegemonic system in itself. The solution is not to look for irrationalities and disparate treatment in enough cases. That would be akin to treating the symptom of the problem. The solution (as domination feminists like Catherine Mackinnon argue) is to focus on how law propagates domination, disadvantage and disempowerment.

Conclusion:

The foundational logic behind feminist jurisprudence is four fold. First, an instinctive distrust of the law as is. Second, to critically question the logic employed in sex equality law to reveal the male biases inherent in them. Third, to understand and analyse the effect of seemingly gender neutral laws. Fourth, to re-imagine the entirety of law as a mechanism separate from the status quo tool of gender subordination. Thus feminist jurisprudence is an integral tool when critically evaluating court decisions regarding sex discrimination and sex equality under law, which we will be dealing with in the next part of the series.

Vaccines: A reading list

NOTE: We don't inhabit a fragmented reality. Nothing around us can be isolated from the catastrophic effects of the pandemic we're witnessing. All further posts on this blog will carry this caveat until there is some reasonable accountability established and substantial actions taken against the state's criminal abdication of responsibility.

Understanding criminal contempt of court

Tracing the development of criminal contempt in India

Section 2(c) of The Contempt of Court Act, 1971 states: “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or; (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or; (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Section 5 states: "Fair criticism of judicial act not contempt".— a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

The contempt power of courts has been mainly traced back to the power of sovereign i.e. the king. Courts, in ancient times were the actors of the sovereign and thus going again the court, scandalising the court, disobeying the court was tantamount to going against the king, scandalising the king, disobeying the king and so forth. The power of contempt was instituted in the institution itself. Thus to punish those who did so, contempt of courts was established as a legal philosophy. Lord Clyde, in Johnson v. Grant (1923 SC at 790), explained: “The offence consists in interfering with the administration of law; in impending and perverting the course of justice… It is not the dignity of the court which is offended – it is the fundamental supremacy of the law which is challenged".

In India, after the regulating act of 1773, mayor’s court at Calcutta was replaced by Supreme Court of Judicature at Fort Williams, Calcutta and mayor’s courts of Madras and Bombay were replaced by courts of record, which subsequently were replaced by supreme courts under government of India act, 1800. In various judgements, it was affirmed that courts of record have the ‘summary power’ to punish for their contempt. The Contempt of court act, 1926 was the first statute in India regarding contempt, and provided that high courts have the power to punish for their own contempt and those of subordinate courts too. In 1961, under the chairmanship of then ASG H. N. Sanyal a committee was formed to consolidate and change the law regarding contempt. After deliberations, the contempt of courts act 1971 was enacted that defined contempt as ‘civil’ and ‘criminal’ even though this distinction has been called artificial by many. It is important to note that these subsequent acts did not ‘confer’ the contempt power onto the courts of record, but merely ‘defined the limits’ or ‘restricted’ the contempt power. 

The courts also trace their contempt power under the constitution. Article 129 established the Supreme Court as a court of record and gives it the power to punish for its contempt. Article 142 also confers similar powers onto the apex court. However what is the true origin of the contempt of court is an interesting juridical question. The common law case cited as the foundation of contempt of court is R v. Almon, in which Justice Wilmot said (regarding contempt of court) “And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people”. What is interesting in that this judgment was never delivered due to some technical issues, and thus Justice Wilmot’s remarks were later published separately. The law of contempt is essentially concerned with interference with the administration of justice. It was clearly defined by Lord Diplock in a relatively modern case in the following way: “Although criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it". Halsbury’s Law of England defining “contempt of court” states: “Any act done or writing published which is calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court. Any episode in the administration of justice may, however be publicly or privately criticised, provided that the criticism is fair and temperate and made in good faith. The absence of any intention to refer to a court is a material point in favour of a person alleged to be in contempt.”

Contempt and other rights

The Law commission in its 2018 paper on contempt of court argued, "A powerful judicial system is a condition precedent sine qua non for a healthy democracy. If browbeating the court, flagrant violation of professional ethics and uncultured conduct is tolerated that would result in ultimate destruction of a system without which no democracy can survive. When there is deliberate attempt to scandalise the court, it shakes the confidence of the litigant public in the system, the damage is caused to the fair name of the judiciary. If a litigant or a lawyer is permitted to malign a Judge with a view to get a favourable order, administration of justice would become a casualty and the rule of law could receive a setback. The judge has to act without any fear thus no one can be allowed to terrorise or intimidate the judges with a view to secure orders of one’s choice. In no civilised system of administration of justice, this can be permitted".

However the juridical question of when did the source of contempt power transfer from the sovereign i.e. the king to lie inherently within the institution of courts has still not been coherently answered. Moreover, since we no longer live under kings, and live in a democracy, the courts do derive their power from the people and in some sense they should also be answerable to people and their criticism. Silencing the criticism of the people does appear devoid of logic. Ronald Goldfarb in his paper argues against contempt with respect to an American ethos when he says, “The American ideology is one based upon recognition of the rights and liberties of the individual. This concept was ensured by the architects of our government when they created this republic, one in which all men are, at least philosophically, sovereign, while government is but the vehicle of their sovereignty. The manifestation of this dream was encouraged by bitter memories of monarchical experience-the hope for individual liberation. How can it then be that man can be contumacious to a sovereign which is, theoretically at least, the ultimate extension of himself; or inversely, should government, created by, of, and for man be allowed to punish the exercise of the will of its constituent self?”

The Supreme Court of Canada, like the European Court on Human Rights, set out the crux of the issue as being whether a restriction on freedom of expression was “necessary in a democratic society”. Lamer J stated: [T]he common law must be adapted so as to require a consideration of both the objectives of the publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows: A publication ban should only be ordered when: (a) Such ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to freedom of expression of those affected by the ban. Closer home, in India the issue of reforming contempt law is a tricky one. Since the courts derive their power of contempt from the constitution (which does not specifically limit the right or defines its contours), abolishing or amending any other legislation cannot take away this inherent power in courts. The Sanyal Committee did, however, proceed on the assumption that no major reforms in the law of contempt could take place because the constitutionally guaranteed power of contempt of the High Courts and Supreme Court could not be taken away by legislation. A constitutional amendment was necessary. Moreover, the Act does not recognise one of the basic principles of natural justice, viz, nemo debet esse judex in propia causa, i.e, no man shall be a judge in his own cause. Thus, in contempt proceedings, the court arrogates to itself the powers of a judge, jury and executioner which often leads to perverse outcomes. Truth as a defence was added as late as 2006 and it still is not an absolute defence as it is caveated by if that truth is in ‘public interest’.

Gautam Bhatia in his blog defines the inherent faulty logic behind contempt as, “if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court. The assumption implicit in this – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it is highly paternalistic and problematic”.

Lord Pannick in Dhoorika v Public Prosecutor (Supreme court of Mauritius) opined as to why the provision of ‘scandalising the court” should be abolished by arguing - First, the crime is based on dubious assumptions as to its necessity; for example that if confidence in the judiciary is so low that statements by critics would resonate with the public, such confidence is not going to be restored by a criminal prosecution in which judges find the comments to be scandalous or in which the defendant apologises. Second, the existence of the offence will deter people from speaking out on perceived judicial errors and freedom of expression helps to expose error and injustice and promotes debate on issues of public importance. Third, the modern offence recognises that some criticism of the judiciary is lawful. Fourth, where criticism deserves a response, there are other methods of answering it. Similar reasoning was given in the 2012 UK law commission report that abolished the provision of ‘scandalising the court’ as contempt of court. The Australian High Court has gone so far as to rule in 1992 that, in the words of Chief Justice Mason, “So long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice he or she is immune”. All these attempts at reform cannot just be considered in analytic isolation. They arise out of an explicitly stated and otherwise implicit understanding of each of the reformers in respect of what they believe to be the actual needs of the judiciary in the context of the reliability of the press in that society. It is for this reason that while the ideas put forward in many of these proposals should be considered by courts and policy makers in India, they do not necessarily admit of a simple and easy transplant from one jurisdiction and society into another.

Conclusion 

The power of criminal contempt of court suffers from a self confirming bias. In the Indian Law commission report, the number of convictions under the provision was treated as evidence for the continuance for the same law. This logic is inherently flawed. Imagine a law that punishes people for saying the phrase 'Indian can do better'. Assuming there are enough dissatisfied people in India who say this phrase in public quite often, such a provision will lead to many convictions. But trying to find the validity of any such law in the number of convictions itself is a self affirming logic. "This law is valid because this generates many convictions" is not the standard by which we judge the validity of any law. This does not analyze the attributes of law inter alia - the fairness, reasonableness or justness of the law. Thus to break away from this faulty logic, we have to accept and treat citizens as autonomous individuals who can decide for themselves and have the right to a free exchange of ideas. 

Rohingya Deportation case: India's International obligations & the constitutional regime

In this post, I primarily aim to analyse the petition filed in Mohammad Salimullah v. UOI and the arguments made therein. I aim to discuss India's international law obligations vis-à-vis refugees and the principle of non-refoulement in the backdrop of the Foreigner's Act, 1946. I also argue that The Foreigner’s Act is in fact in coherence with the international customary law of non-refoulement and that this in turn not only makes the customary law applicable to India but also puts a higher burden on the state to prove how such foreigners are a threat to the national security.

Background

India does not have any special municipal law governing refugee administration. This has been the source of much criticism due to the ad hoc nature of the state's mechanisms to deal with the issue of refugees. India does not differentiate between refugees and illegal immigrants as it is not a signatory to the 1951 refugee convention or the 1967 protocol. It considers all individuals that enter India illegally and without valid travel documents as foreigners under the Foreigners Act, 1946. Thus, granting refugee status is an administrative and political exercise that the government does on a case to case basis. It is often assisted by UNHRC in such assessment. The government derives its power to detain and deport any such persons to their country of origin (section 8) under section 3(2)(c) of the Foreigners Act 1946.

The legal challenge to deportation of Rohingyas is not being mounted for the first time. In 2018 as well, the government deportation was challenged before the Supreme Court through a writ petition filed by the petitioners. The SC (through Dipak Misra, CJI) opined that the centre must look at the Rohingyan refugee crisis as a humanitarian issue, and called for striking a balance between human rights and national security. The court stopped short of staying the government's deportation orders and granted petitioners the right to approach the court if any 'contingency' arose thus leaving the door for future legal and constitutional challenges open.

The present petition arose in the wake of police authorities detaining Rohingyas living in Jammu in holding centres under the foreigners Act, 1946. The petitioners filed the writ petition under article 32 seeking a writ of mandamus to stop the deportation process.

International Law on Refugees and India's obligations
 
The international treaty governing refugees is the 1951 refugee convention and the 1967 protocol. Article 33 of the 1951convention states:

(1) No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country
 
India is not a signatory to the abovementioned treaty. The state's argument is that India is not a party to any international treaty that obliges it to follow the principle of non-refoulement. The petitioners argue that the principle of non-refoulement is applicable to India through two ways. Firstly, they argue that non-refoulement is now a rule of customary international law and therefore has to be observed by India irrespective of whether it is signatory to the convention or not. The petitioners cite article 38(1)(b) of the statute of International court of justice which states "international custom, as evidence of a general practice accepted as law' as one of the sources of international customary law. For any principle to be considered customary international law it has to fulfil two criteria - consistent state practice and opinio juris i.e. "the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it". The UNHCR has opined that the rule of non-refoulement satisfies both of these tests and thus irrespective of whether any state is party to the UN convention or not - they are bound under international customary law rule of non-refoulement. Secondly the petitioners cite the treaties that explicitly or otherwise bind India under the rule inter alia - Universal Decleration of Human Rights, International Covenant on Civil and Political Rights, International Convention on Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Thus it can be argued that India cannot deport Rohingyas to Myanmar where they face a clear and present danger to their lives and freedom under customary International Law.
 
Indian courts use principles of International law often, however it has been stated clearly that any such international law can only be applied when it is in coherence to municipal law, and in a case of dispute between the two - the latter will prevail. Therefore the focus should be on analyzing whether the foreigner's act and the rule of non-refoulment are contradictory or not – which in turn can answer the question of applicability of the international customary law on India.
 
The sine qua non for disregarding the principle of non-refoulement is that if a municipal law is clearly in conflict with it. I argue that the Foreigner's Act, 1946 (municipal law) is not in conflict with the principle of non-refoulment and thus the state cannot argue against the applicability of the rule. A plain reading of the foreigner's act appears to give the state a carte blanche when it comes to deportations, but a closer look of both the legislative aim and the usage of the law will reveal that such deportations are only done in cases where such persons pose a legitimate threat to law and order or national security. Both of these provisions come under article 33(2) exception laid down in the UN convention and similarly observed in the customary international law.
 
The ICJ in Nicaragua v. US stated that instances of inconsistency of the rule if justified on the basis of exception clauses do not render the international customary law nugatory and confirm the rule rather than weaken it. Thus the application of foreigner's act qua the national security exception shows how any such inconsistency (of not holding the rule of non-refoulement) comes within the exception clause and thus does not render the main rule null. Ipso facto since the two laws are in coherence - the international law can be applied to India as well. This in turn puts a higher burden on the state to legitimately prove its national security argument to qualify as exception under the principle of non -refoulement. Therefore India can deport any foreigner as per its policy but when it comes to deporting a citizen to a place where there is a clear and present danger to his life or freedom it will have to qualify the exception clause by proving how such persons are a threat to national security.
 
Another argument that can be made is that since the legitimate legislative goal of the state under Foreigner's act is to protect law & order and safeguard national security - without legitimately proving how such persons are a threat to the national security of the country, there does not appear to be a rational nexus between the reasonable classification and the state objective sought and thus the act of deportation could be voided as being in contravention to article 14 rights conferred by the constitution on such persons.

An analysis of the writ petition

The foremost ground of disagreement is whether any fundamental rights are available to illegal immigrants or not. The state had argued during the 2018 round of litigation, and still continues to - that fundamental rights are not available to illegal immigrants and that deportation strictly constitutes a policy matter. Various court decisions have previously held that Article 21 is available to all 'persons' including refugees and is not limited to citizens as opposed to some of the other fundamental rights such as articles 15, 16 & 19. In NHRC v. Arunachal Pradesh, the Supreme Court had held that every person whether citizen or otherwise is entitled to equality before the law and equal protection of laws. It also held that no such person can be deprived of his right to life and liberty except according to procedure established by law which qua Maneka Gandhi v. UOI has to be reasonable, fair and just. In DonghLian Khan v. UOI the Gujarat High court explicitly read principle of non-refoulement into article 21 and held that no such refugee can be expelled to a place where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. The court did recognize that the principle was not absolute and was subject to national security exception. In Ktaer Abbas Habib Al Qutaifi v. UOI the Gujarat High court while affirming the principle of non refoulement to be read as a part of article 21 also observed that all members of international treaties including our nation must respect such conventions and laws. They also observed that article 51(c) of the constitution casts a duty on the state to foster respect for international law and treaty obligations in the dealing of organized people with one another. The Madras high Court in P. Ulaganathan v. Government of India also affirmed that article 21 applies to refugees.

Thus there is abundant precedent that articles 14 and 21 apply to refugees as well. The state choosing to call them 'illegal immigrants' and arguing that fundamental rights are not available to them is a misnomer because the Indian legal regimes does not recognize a distinction between illegal immigrants and refugees. The precedent stated above also applies to Rohingyas in the case in point irrespective of what name the state calls the Rohingyas by. The petitioners also made the argument that classification of refugees is declaratory in nature and since Rohingyas qualify the criteria laid down in the UN convention and that they should be considered separately from mere illegal immigrants.
 
The petitioners also cite the Supreme court judgement in Justice K.S.
Puttaswamy(Retd) and Anr. v. UOI and Ors which categorically stated that “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime. India is a responsible member of the international community and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation.”

Conclusion
 
The SC has reserved its order on the matter. With ample precedents available that confirm the applicability of article 21 and article 14 to refugees – the court has to decide if article 21 contains within itself the principle of non-refoulement or not. An answer in affirmative to the first question would mean that the state cannot deport such persons in abrogation to their fundamental rights to life and liberty guaranteed under the constitution and the foreigner’s act does not allow the state a carte blanche to deport any person anywhere irrespective of a threat to their lives and in contravention to their article 21 rights. An answer in negative will set a dangerous precedent of non-availability of fundamental rights to refugees under Indian constitution which as many have argued goes against the liberal ethos of the Indian constitution.